R v DK

Case •

[2023] NSWCCA 281

•

10 November 2023

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v DK [2023] NSWCCA 281
Hearing dates: 16 June 2023
Date of orders: 10 November 2023
Decision date: 10 November 2023
Before: Simpson AJA at [1];
Wilson J at [85];
Yehia J at [86]
Decision:

1. The Director’s appeal upheld;

2. The order made by the District Court on 9 March 2023 that the Crown pay costs reasonably incurred by the recipients of subpoenas addressed to LR, MB, ACLG and JC is set aside.

Catchwords:

CRIMINAL PROCEDURE – costs – subpoena –

issued by Crown to non-parties – non-parties are legal practitioners – client legal privilege asserted – non-parties seek costs of setting aside and complying with subpoenas – power of District Court in proceedings on indictment to order costs against the Crown in relation to subpoena – whether statutory power exists – whether implied power exists – distinction between compliance costs and litigation costs

APPEALS – jurisdiction – Court of Criminal Appeal – where District Court awards costs to non-parties who received subpoenas issued by Crown in criminal proceedings – Criminal Appeal Act 1912 (NSW) s 5F – whether decision to grant application for costs of subpoena an interlocutory judgment or order – whether decision to grant application for costs of subpoena a decision made in the proceeding for the prosecution of the offender on indictment

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW)

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW) s 319

Criminal Appeal Act 1912 (NSW) s 5F

Criminal Procedure Act 1986 (NSW) ss 149E, 170, 171, 224, 227

District Court Act 1973 (NSW) ss 171, 171D

District Court Rules 1973 (NSW) rr 21, 22, 53.21

Evidence Act 1995 (NSW) ss 118, 119, 125

Supreme Court Act 1970 (NSW) ss 17, 69, 75 Supreme Court (Criminal Appeal) Rules 2021 (NSW) rr 1.4, 3.5, 3.15, 4.13

Supreme Court Rules 1970 (NSW) r 75.3

Uniform Civil Procedure Rules 2005 (NSW) rr 1.5, 33.11

Cases Cited:

Attorney General (Qld) v Holland (1912) 15 CLR 46; [1912] HCA 26

BUSB v R (2011) 80 NSWLR 170; [2011] NSWCCA 39

Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523

Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45

John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324

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

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

R v JS (No 2) [2007] NSWCCA 309; 179 A Crim R 10

R v Mosely (1992) 28 NSWLR 735

R v Obeid [2018] NSWSC 1024

R v Pavia (1993) 67 A Crim R 364

Rodden v R [2023] NSWCCA 202

Stanizzo v Complainant [2013] NSWCCA 295

Stanton v Abernathy (No 2) (1990) 19 NSWLR 656

Wright v Judge Keon-Cohen (Supreme Court (Vic), Appeal Division, 18 September 1992, unrep)

Category:Principal judgment
Parties: Crown (Appellant)
DK (Respondent 1)
DA (Respondent 2)
MB (Respondent 3)
JC (Respondent 4)
MD (Respondent 5)
LR (Respondent 6)
Representation: Counsel:
A Bonnor (Appellant/Crown)
S Goodwin (Respondents 2, 4, 5) S Carr (Respondent 3)
A Kernaghan (Respondent 6)
File Number(s): 2017/344007
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
09 March 2023
Before:
Williams SC DCJ

HEADNOTE

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

The respondents, each of whom is a legal practitioner, were the recipients of subpoenas issued by the District Court in its criminal jurisdiction at the request of the Director of Public Prosecutions (“the Director”). Each practitioner had acted, at various times, for DK, who was charged with sexual offences. DK was subsequently charged with several counts of engaging in conduct intending to pervert the course of justice. The charges related to alleged attempts by DK to recruit acquaintances to provide false information to his solicitors in relation to the sexual offence charges.

Each subpoena sought the production of “documents and things” in the possession of the practitioner, relating to legal instructions taken by the practitioner from DK or his acquaintances. Each respondent filed a notice of motion in the District Court seeking orders, in some cases, that the subpoena be set aside and, in others, that access by the Director to the documents produced be refused. Each claim was made on the basis of client-legal privilege owed to DK under Div 1 of Pt 3.10 of the Evidence Act 1995 (NSW).

The primary judge dealt informally with the objections and ordered the Crown to pay the costs incurred by the recipients of the subpoenas.

The Crown appealed against the order for costs pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW). By its sole ground of appeal, the Crown contended that the District Court does not have the power to make an order for costs against the Crown in relation to a subpoena issued at the Crown’s request. The respondents maintained that such a power did exist, at least in relation to the costs of complying with the subpoena, and contended, further, that the Court of Criminal Appeal lacked jurisdiction to determine the appeal.

The Court (Simpson AJA, Wilson and Yehia JJ agreeing) held, allowing the appeal:

  1. The Court had jurisdiction to hear the appeal under s 5F(2) of the Criminal Appeal Act. The primary judge’s order was properly characterised as an “interlocutory” order made in proceedings for the prosecution of DK: [30]-[46].

Rodden v R [2023] NSWCCA 202, R v Pavia (1993) 67 A Crim R 364, R v Obeid [2018] NSWSC 1024, applied.

  1. The appeals were not otherwise incompetent. That the Crown sought to amend its ground of appeal by a Form entitled “Other Application” did not convert its appeal into a fresh appeal filed out of time: [24]-[29]. Further, the Crown’s appeal was properly brought as an appeal, rather than as an application for judicial review: [47].

  1. The powers of the District Court are limited to those conferred by statute and those necessarily implied from the express conferral of jurisdiction and grant of powers: [49]. The District Court has no power, either by statute or by implication therefrom, to order the Crown to pay the costs incurred by the recipient of a subpoena issued at the request of the Crown: [55]-[83].

  2. Observations (by Simpson AJA, Wilson and Yehia JJ agreeing) on the obligations of legal practitioners in receipt of a subpoena issued in the circumstances of this case: [15]-[16], [83].

  3. Observations (by Yehia J, Wilson J agreeing) on the obligations of the Crown in issuing subpoenas in the absence of a power in a court to award the costs of complying with the subpoena: [87]-[88].

JUDGMENT

  1. SIMPSON AJA: Five notices of appeal pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW) are before the Court. The appellant in each case is identified as the Director of Public Prosecutions (NSW) (“the Director”). At times that identification is used interchangeably with “the Crown”, which explains different terminology in some of the authorities to which I will refer.

  2. In each appeal the Director seeks an order quashing an order made in the District Court in its criminal jurisdiction on 9 March 2022 by M Williams SC DCJ (“the primary judge”). Each order was to the effect that the Crown pay costs incurred by the recipient of a subpoena issued by the District Court in its criminal jurisdiction at the request of the Director. The sole issue raised by each appeal is whether the District Court had power to make that order.

Procedural matters

  1. The respondent to each appeal is an Australian legal practitioner. One (LR) practises as a barrister. The others (JC, DA, MD and MB) practise as solicitors, three of them in a single law firm to which I will refer as “ACLG”. The respondents have asked that they not be named in the record of the reasons for judgment on the appeals. Their concern is for reputational damage, given that this is a proceeding in the criminal jurisdiction. There is no basis under the Court Suppression and Non-publication Orders Act 2010 (NSW) for orders for suppression or non-publication of the identities of the respondents. That, however, does not mean that the legal practitioners must be identified by name and there is no apparent reason of public interest or otherwise that they should be. The respondents have in all respects conducted themselves in accordance with the high standards of the legal profession, and there is no reason for their names to be associated with a criminal prosecution. I propose therefore to identify the respondents to the appeals by letters of the alphabet only.

  2. The notices of appeal were filed on 23 March 2023. In each, the Director identified a single ground of appeal, as follows:

“The trial judge erred in finding that he had the power to award costs to the respondent in relation to a subpoena for production issued by the Crown.”

The Director also reserved the possibility of identifying further grounds on receipt of reasons for the orders made. On 1 June 2023, in each appeal, on a Form entitled “Other Application”, the Director sought leave to amend the ground stated. The proposed amended ground was formulated as:

“The trial judge erred by ordering that the Crown pay costs incurred by the recipients of subpoenas in the absence of any power to make such an order.”

The applications for leave to amend have not yet been dealt with.

  1. Initially, the Director named “DK” (who is not a legal practitioner) as the first respondent and the respondents, respectively, as the second to sixth respondents. By amended “Other Application” filed in each appeal the Director then sought to amend further the notice of appeal by removing DK as respondent. In my opinion DK is correctly a party to the proceedings (although he was not represented at the hearing of the appeals and has no apparent interest or involvement in the only issue for determination).

Relevant background

  1. The issue for determination arises in the following circumstances. In about 2018 the man to whom it is convenient to refer as “DK” was charged with three counts of sexual offences, alleged to have been committed in 2017 against his daughter, then aged 6. On 23 March 2018 DK was arraigned in the District Court on an indictment that contained those charges. DK retained solicitors to represent him. From time to time DK changed solicitors. At different times JC, DA, MD and MB were retained. At one point LR (a barrister) was briefed to advise and/or represent DK.

  2. Police received information that DK had taken steps to recruit two female acquaintances (MM and JT) to provide false information to his solicitors, with a view to using the false information in the anticipated trial proceedings. For a time, the Director alleges, MM and JT agreed to comply with DK’s requests, and engaged with solicitors representing him and provided them with false information. Subsequently, both MM and JT withdrew from the arrangement and declined to give the evidence DK had requested. They made statements to police retracting the instructions they had given to DK’s solicitors and recording versions of events they said DK had asked them to provide to DK’s legal representative. As a consequence, DK was charged, on ex officio indictment, with seven counts of engaging in conduct intending thereby to pervert the course of justice, offences against s 319 of the Crimes Act 1900 (NSW).

  3. A Crown Case Statement was prepared for the purpose of trial. The Crown Case Statement detailed the conduct alleged against DK, which included procuring the engagement of MM and JT with the various legal practitioners who had been retained to represent DK, and providing MM and JT with scripts for the purpose of providing instructions to his legal representatives.

  4. At the request of the Director the District Court issued a series of subpoenas directed to the legal practitioners. According to the Director’s written submissions on these appeals (the evidence is incomplete in this respect, but the assertion is not challenged), in all, subpoenas were served on 11 individual recipients, all legal practitioners. Only three of the subpoenas have been provided to this Court, those served on JC, MD, and LR. Although the schedules to the subpoenas were not framed in identical terms, in essence each required production of “documents and things” in the possession of the recipient relating to instructions taken from MM or JT, or from DK relating to MM or JT. Prima facie, therefore, the material sought was subject to client legal privilege as protected by Div 1 of Pt 3.10 of the Evidence Act 1995 (NSW).

  5. Four of the recipients responded by saying that they had no documents to produce. Seven (of whom three were members of ACLG) either produced documents or acknowledged that they were in possession of documents encompassed by the subpoena. Each objected to any order granting access to that material by the Director on the basis that the documents were the subject of client legal privilege.

  6. LR filed two notices of motion. In the first she sought an order that access to the Director to documents produced by her in response to the subpoena be refused “on the ground of client-lawyer professional privilege”. In the second, she sought an order setting aside “in part or in whole” the subpoena directed to her, and orders that the Director pay “conduct money in accordance with the Rules of the District Court”, and the legal costs of the notice of motion. In written submissions filed in support of the second notice of motion she specified the grounds for the orders sought as that the subpoena was vexatious and/or oppressive, an abuse of process, and was lacking in legitimate forensic purpose (in addition to the claim for refusal of access to the Director on the ground of client-legal privilege).

  7. Two other recipients (MB and JC) also filed notices of motion seeking orders that the subpoenas served on them be set aside (without specifying the grounds for the application). In each case the notice of motion was supported by affidavit evidence, and written submissions were provided.

  8. The notices of motion came on for hearing before the primary judge on 6 December 2022. DK was represented by counsel who described himself as having a “watching brief” and played no active part in the proceedings. JC, ACLG, MB and LR were legally represented. The applicants in the notices of motion (three of the respondents to the present appeals) maintained their objections to the Director being granted access to the documents produced, on the ground of client legal privilege. ACLG joined in the applications. The Director’s position was that, because the documents sought by the subpoenas had, in each case, been prepared in furtherance of the commission of an offence (by DK) the privilege that would, by s 118 or s 119 of the Evidence Act have otherwise attached to the documents was, by s 125 thereof, lost.

  9. The procedure adopted for resolving the issues was informal. The primary judge examined the documents and made ex-tempore rulings on whether access would be granted to the Director. No formal orders appear to have been made, and no reasons, apart from those to be discerned from the transcript, were given. No issue arises in the present proceedings as to the correctness or otherwise of the rulings made or the procedure adopted. The scope of the privilege encompassed by the client-legal privilege provisions of the Evidence Act (Pt 3.10, Div 1), and, in particular, s 125 thereof, is not relevant to these appeals.

  10. It is, however, worth making these observations. The privilege afforded by Div 1 of Pt 3.10 of the Evidence Act is against the use, in court proceedings, of confidential communications the dominant purpose of which is the provision of legal services. It is a privilege conferred on the client, as is apparent from, for example, s 118 and s 119, each of which prohibits adducing evidence the subject of client legal privilege “on objection by a client”. Although there was evidence that DK had stated that he did not waive his privilege, there was no suggestion that any of the respondents was acting on behalf of, or on the instructions, of DK.

  11. To that extent, the notices of motion (possibly excepting that by which LR asserted that the subpoena served on her was vexatious and/or oppressive), may have been misconceived. It is, of course, perfectly proper for a legal practitioner in receipt of a subpoena that on its face commands production of what may be subject to privilege, to signify that fact on production of the material the subject of the subpoena and to notify the person who has the benefit of the privilege. To go further and make a claim for privilege may exceed the role of the practitioner who no longer acts for the client. However, no issue was taken about this either at first instance or on appeal and DK was legally represented at the hearing at the notices of motion (although inactively). Subject to what appears below at [82] it is neither necessary nor appropriate to explore this further.

  12. The matter was next listed on 9 March 2023. It appears that the purpose of the listing on this occasion was determination of applications by the respondents for costs incurred by them in their responses to the subpoenas. The Director’s position was simply that the District Court had no power to award costs as sought by the respondents. The respondents’ position was to the contrary and that, in the interests of justice, an order for costs ought to be made. The Director, LR and members of ACLG all provided written submissions.

  1. In her written submissions LR differentiated between the two classes of “costs” she sought. The first she described as “conduct money”, meaning the costs involved in complying with the subpoena served on her (“compliance costs”). The second class of costs she sought was the professional costs she incurred in preparing and pursuing the notices of motion in resistance to the subpoena served on her (“litigation costs”).

  2. The primary judge delivered an ex-tempore judgment. He expressed his orders in the following terms:

“I order the Crown to pay costs reasonably incurred by the recipients of the subpoenas addressed to [LR], to [MB], and to [ACLG] or [JC].”

The orders as they appear on JusticeLink are related to the three notices of motion and are in the following terms:

“I make an order for costs for the subpoena respondent parties against the Crown.”

  1. There is nothing in either version of the orders that specifies whether the costs the subject of the orders were compliance costs or litigation costs. The primary judge noted that the Crown had suggested that, if such an order were to be made, the quantum would be dealt with by “a branch of the [Director of Public Prosecutions]” and the court was not required to engage in an assessment exercise.

The appeals to this Court

  1. The single ground of appeal upon which the Director relies is set out above (at [4]).

  2. The Director provided written submissions in which the only issue raised was the power of the primary judge to make the orders he did. I will return to those submissions.

  3. The respondents provided joint written submissions. They began by submitting that the appeals should be dismissed as incompetent, for the following stated reasons (par 3 of the respondents’ written submissions):

“a. The purported amendment of the Grounds of Appeal appears to have been without leave of the Court and, in any event, is a fresh originating process;

b. The originating process relied upon by the Appellant dated 1 June 2023 is out of time;

c. The order appealed from is not an interlocutory order;

d. The single ground of appeal seeks judicial review of a jurisdictional error and not an interlocutory appeal.”

As these submissions generally appear to raise issues that may be dealt with under the rubric of jurisdiction, they must be addressed first.

Jurisdictional issues

“a” and “b”: Amendment of the grounds of appeal

  1. I have set out above (at [4]) the ground of appeal as originally pleaded by the Director, and the proposed amended ground filed on 1 June 2023 on a Form entitled “Other Application”. That is a Form numbered 12, prescribed pursuant to Supreme Court (Criminal Appeal) Rules 2021 (NSW) (“SC (CA) Rules”) r 3.15 for making an “application to the court not required to be filed”. A separate Form (Form 19) is prescribed by SC (CA) Rules r 4.13 to be filed where an appellant intends to rely on a ground of appeal not stated in the notice of appeal. The respondents’ argument, as reflected in “a” and “b” of par 3 of their written submissions (see [23] above), was that, because the Director’s 1 June 2023 proposed amended grounds were filed in Forms 12, and not in Forms 19, the applications are, in truth, fresh applications, and out of time. (SC (CA) Rules r 3.5(4) prescribes, as the “applicable period” for an appellant to file an appeal under s 5F of the Criminal Appeal Act against an interlocutory judgment or order, a period of 14 days from the date thereof).

  1. I do not accept that the “Other Applications” filed on 1 June 2023 were fresh originating processes, nor that they were amendments filed without leave. It is clear that what was contained in each 1 June document was notification, pursuant to SC (CA) Rules r 4.13, of the Director’s intention to rely on a ground of appeal not stated in the notice of appeal. The notification is not a fresh application. Provided that notice is given in accordance with SC (CA) r 4.13, it does not appear that leave is required. It may well be that the applications were filed using the wrong Form. In any event, by subr 1.4, this Court has power to dispense with a requirement of the Rules if satisfied that it is appropriate to do so. In the circumstances of this case, I am so satisfied, and I would exercise that power. I would dispense with the requirement (if such a requirement exists) that the notification of additional grounds of appeal be filed in Forms 19.

  2. The respondents discern a “critical” difference in the terminology of the original and the proposed amended grounds. They interpret the 1 June 2023 ground as directed to the costs of determination of the notices of motion by which the respondents sought to set aside the subpoenas (litigation costs), as distinct from compliance costs. Their argument was that, while they accepted that the District Court had no power to order against the Director the costs of litigating the issues raised by the notices of motion, it nevertheless had power to order that the Director pay compliance costs. They maintained that, on their proper interpretation, the primary judge’s orders were for the latter (compliance costs) and not the former (litigation costs). It appears to be for that reason that the respondents take issue with the manner in which the application for leave to amend the ground of appeal was made.

  3. I am not persuaded that the orders should be as interpreted by the respondents. Whether as framed in the orders as set out in the ex-tempore judgment, or as recorded on Justicelink, the orders are quite unspecific as to the nature of the costs intended to be encompassed. And, in any event, it is the Director’s contention that the District Court has no power to order costs of either category.

  4. I do not perceive in the original and the amended grounds the distinction the respondents seek to make. There is, as discussed below, an important difference between costs that may be incurred in meeting the demands of a subpoena, and costs which may be incurred in relation to an attempt to resist compliance with a subpoena, or a grant of access to documents produced. It is not apparent to me that the proposed amended ground of appeal is directed to that distinction. In fact, I discern little difference in the formulation of the grounds.

  5. It is not apparent to me why the proposed amendment was perceived to be necessary, although it is a more precise reflection of what is contained in the orders pronounced following the delivery of the ex-tempore reasons. Even if the proposed amendments are as the respondents perceive them, I would grant leave to amend (if leave be necessary). Ample notice was given of the proposed amendments and I cannot see that the respondents will suffer any prejudice if the amendments are made. That disposes of the submission as to incompetence of the appeals asserted by pars “a” and “b” of par 3 of the respondents’ submissions.

“c”: were the orders “interlocutory”?

  1. In bringing the appeals, the Director relies on s 5F(2) of the Criminal Appeal Act. By s 5F(1)(a), s 5F applies to:

“proceedings … for the prosecution of offenders on indictment in the Supreme Court or in the District Court … .”

Subsection (2) provides:

“The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.”

  1. The jurisdiction of this Court under s 5F(2) thus depends upon two things:

  1. that the order against which the Director appeals is interlocutory; and

  2. that the order against which the appeal is brought is made in a proceeding to which s 5F applies – that is, the criminal prosecution of an [alleged] offender on indictment.

  1. For completeness, subs (3) of s 5F provides:

“Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings—

(a)   if the Court of Criminal Appeal gives leave to appeal, or

(b)   if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.”

  1. The respondents contended that the orders were not interlocutory, but were final orders, because they brought to an end the proceedings between them and the Director. That calls for identification of “the proceedings” in which the orders were made.

  2. The respondents’ argument was that “the proceedings” were proceedings commenced by their notices of motion which were finally determined by the costs orders. The costs orders were therefore, on the respondents’ argument, final, and not interlocutory orders, and not within s 5F(2) of the Criminal Appeal Act.

  3. That proposition is belied by the very nature of the processes (notices of motion) initiating what the respondents characterise as “the proceedings”: an application made by notice of motion is, by its very character, an application made in an already existing proceeding – in this case, that proceeding was the criminal prosecution of DK. It is necessary to go no further than the recent decision of this Court in Rodden v R [2023] NSWCCA 202. That decision was published after the conclusion of the hearing of these appeals. It was, quite properly, drawn to the attention of this Court by counsel for the respondents, with appropriate notice to the Director. No party sought leave to make any further submissions with respect to the effect of that decision on these appeals.

  4. Mr Rodden was charged with murder. He was acquitted by a jury. He applied to the trial judge for a certificate under the Costs in Criminal Cases Act 1967 (NSW), which, if granted, would have entitled him to make a further application, this time administratively, for payment of his costs incurred in the trial proceedings. The trial judge declined to grant a certificate. Pursuant to s 5F(3) of the Criminal Appeal Act, Mr Rodden sought leave to appeal to this Court.

  5. In Rodden the Director argued that the order made by the trial judge refusing to grant a certificate was neither interlocutory nor made in a proceeding to which s 5F applies. Both arguments were rejected: see [74]-[97]. This Court noted that, generally speaking, an interlocutory order is one which does not finally resolve the dispute between the parties, the “parties” being the parties to the proceeding in which the order is made.

  6. Under the Costs in Criminal Cases Act, application could be made for a certificate “in any proceedings relating to any offence”. This Court held that Mr Rodden’s application for a certificate was made (and refused) in the proceedings constituted by the trial of the criminal charges against Mr Rodden. In response to the Director’s contention that the application and the order refusing the application was not made in those proceedings, the Court simply asked (at [87]) “… what proceedings were they made in?” The same question may here be asked.

  7. Just as in Rodden the “proceeding” in which the application for a certificate was made was the proceeding constituted by the criminal prosecution of Mr Rodden, the “proceeding” in this case was the proceeding constituted by the criminal prosecution of DK. The subpoenas were issued in that proceeding; the notices of motion were filed in that proceeding; and the applications for costs were made in that proceeding. The orders made by the primary judge were similarly orders made in that proceeding (which had not concluded at the time the orders in question were made). No separate proceedings were initiated by the notices of motion. The criminal prosecution of DK was not finally resolved by the costs orders. The orders were, for that reason, interlocutory.

  8. That is consistent with approach taken by this Court in R v Pavia (1993) 67 A Crim R 364. Mr Pavia was charged on indictment with murder. A trial commenced in the Supreme Court. Two days later, on the application of the Crown, the jury was discharged, the Crown having come into possession of additional evidence of which Mr Pavia had not been given notice and had had no opportunity to investigate. The trial judge granted the Crown the adjournment it sought, but ordered the Director to pay the costs thrown away. Pursuant to s 5F(2) of the Criminal Appeal Act the Director appealed against that order. He argued that the Supreme Court had no power to make a costs order except pursuant to the provisions of the Costs in Criminal Cases Act.

  9. In response, Mr Pavia sought to rely on s 76(1)(a) of the Supreme Court Act 1970 (NSW) which confers on the Supreme Court a general discretion as to costs. By s 17(1) of that Act, however, except as otherwise provided in s 17, the Supreme Court Act and the Rules made thereunder do not apply to, inter alia, “proceedings … for the prosecution of offenders on indictment …” (language relevantly identical to the language of s 5F(1) of the Criminal Appeal Act. Section 17(1) of the Supreme Court Act will be considered again below).

  10. As recorded in the judgment, Mr Pavia argued that the costs order [i.e. the application for costs] did not constitute “proceedings … for the prosecution of offenders on indictment”; it related to, but was not, such a proceeding. Carruthers J, with whom McInerney and Sully JJ agreed, rejected the contention, saying that the order:

“…was an integral part of the proceedings for the prosecution of [Mr Pavia] on indictment.”

  1. And in R v Obeid [2018] NSWSC 1024 (“Obeid”) (discussed below) Beech-Jones J (as the former Chief Judge at Common Law then was), in the context of an application for both compliance costs and the litigation costs of an application to set aside a subpoena issued on behalf of an accused person in a criminal trial and served on a third party) said (at [44]):

“An application to set aside a subpoena issued at the behest of the accused in proceedings on indictment is clearly an interlocutory process in criminal proceedings …”

  1. There is, it is true, a point of distinction between Rodden and this case. In Rodden there was identity of the parties to the criminal prosecution and the application for a certificate under the Costs in Criminal Cases Act (although the involvement of the Director in the application for a certificate may have been somewhat tenuous). And true it is that the subpoena proceedings were more remote from the prosecution of DK than was the costs order in the prosecution of Mr Pavia. Those distinctions do not alter the fundamental fact that the issue of the subpoenas, the applications made by notices of motion and the applications for costs were also integrally part of and incidental to the criminal prosecution of DK.

  2. I conclude that each order made by the primary judge was an interlocutory order made in a proceeding to which s 5F of the Criminal Appeal Act applied.

  3. There is, accordingly, jurisdiction in this Court under 5F(2) to determine the Director’s appeals.

“d”: “Judicial review of a jurisdictional error”?

  1. The respondent’s final contention with respect to the competence of the appeal was that, properly understood, the Director’s argument on the appeals is that the primary judge lacked jurisdiction to make a costs order, and, accordingly, the Director’s avenue of redress is via s 69 or s 75 of the Supreme Court Act for judicial review of the orders or declaratory relief. That is to mistake the Director’s argument. That argument is that the primary judge had no power to make an order for costs in favour of the respondents. The Director does not contend and never has contended that the District Court lacks jurisdiction to make orders with respect to subpoenas, and to make consequential costs orders in appropriate cases. This contention should be rejected.

  2. There is no jurisdictional barrier to this Court proceeding to determine the Director’s appeals.

The appeals: power of the District Court to award costs

  1. Turning now to the substance of the appeals (that is, the question of the power of the District Court to make orders against the Director for costs in relation to the issue of subpoenas in criminal proceedings), two well established principles must be borne in mind. The first is that the District Court is a court created by statute. Its powers are those conferred by statute, and those necessarily implied from the express conferral of jurisdiction and grant of powers: John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [24], [28] (“John Fairfax Publications”). The test of implication (i) is a test of necessity and (ii) is to be strictly applied: John Fairfax Publications at, respectively, [35] and [37]; Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 at 671; The Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523 at 531 (“Deeks”). The second essential proposition is that, in criminal cases, the Crown (in this case represented by the Director) neither pays nor receives costs: Attorney General (Qld) v Holland (1912) 15 CLR 46; [1912] HCA 26; Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59; R v Mosely (1992) 28 NSWLR 735 at 738; Deeks at 531-2). Indeed, even in civil proceedings in common law courts the power to order costs against a party is the creation of statute: see Wright v Judge Keon-Cohen (Supreme Court (Vic), Appeal Division, 18 September 1992, unrep), quoted by Carruthers J in Pavia at 366-7.

  2. For the District Court to have power to award costs in a criminal proceeding it is therefore necessary to locate a legislative source of that power. In Stanizzo v Complainant [2013] NSWCCA 295, R A Hulme J, with whom Macfarlan JA and Latham J agreed, held that the District Court has no power to award costs to the recipient of a subpoena issued in a criminal proceeding who had successfully applied to have the subpoena set aside. The subpoena was issued at the behest of a person charged with criminal (sexual) offences and served on the complainant. There was in that case no issue of compliance costs. The only issue was the power of the Court to order the accused to pay the litigation costs of the application to set aside the subpoena.

  3. In Obeid the subpoena in question was also issued on the instigation of person facing trial on indictment. The recipient of the subpoena applied to set it aside, and sought both costs of compliance, and the litigation costs of the application to set it aside. At [32], Beech-Jones J discerned a legislative intention to empower a court hearing proceedings on indictment to order an accused person to reimburse a third party for reasonable costs incurred in complying with the subpoena issued by the accused person, but not the litigation costs of an application to set the subpoena aside. His Honour accepted that costs of compliance could extend to costs of obtaining legal advice as to the scope of a subpoena, and other legal issues. It is not to be overlooked that in that case the Crown was not involved in the dispute. It is also pertinent to note that the issuing party in that case was the accused.

  4. Recognising the distinction drawn by Beech-Jones J in Obeid, the respondents disavowed any claim for litigation costs, and sought only their compliance costs. They contended that, properly construed, the orders made by the primary judge were for compliance costs and therefore within the scope of costs recoverable as discerned by Beech-Jones J.

  5. It is difficult to accept that interpretation of the orders. Although his Honour referred to and quoted from the reasons of Beech-Jones J (accepting that costs of compliance may extend to costs of obtaining legal advice as to the scope and content of a subpoena and of confidentiality and privilege issues), his Honour, in the final paragraph of his brief reasons before the framing of the orders, stated his view that the respondents were:

“… properly and necessarily carrying out their statutory and professional duties to protect the privilege which prima facie attached to the documents the subject of the subpoena.”

That is, in my opinion, a clear reference, not to the costs of complying with the subpoenas, but to the litigation costs involved in taking steps to resist production or the grant of access – that is, the issues raised by the notices of motion, and excluded from the power of the court to award costs as discussed by Beech-Jones J in Obeid.

  1. It may, however, be accepted that the order of the primary judge is open to a different interpretation or at least is unclear as to what was intended to be included. And it makes no difference in the result. As shall be seen, there is no express statutory power in a District Court judge to award costs of either category against the Crown (the Director) in criminal proceedings. Counsel for the Director methodically identified, examined, and eliminated, any and every potential statutory source of power.

Relevant legislation

  1. It is convenient to begin with Pt 53 of the District Court Rules 1973 (NSW), made under the authority of s 171 of the District Court Act 1973 (NSW). Pt 53 contains Criminal Procedure Rules. Division 2 of Pt 53 is concerned with subpoenas. Subrule 22(1) contemplates (unsurprisingly) that a subpoena may be issued to a person who is not a party to the proceedings, calling for production of a document or thing. Subrule 21 prescribes the manner in which “conduct money” “for the expenses of complying with a subpoena” is to be calculated. That subrule presupposes that, in some cases at least, a recipient of a subpoena is otherwise entitled to “conduct money”. There is nothing in Pt 53 Div 1 (or any other part of Pt 53) that expressly confers power on the District Court to make an order for costs in relation to a subpoena. Nor is there anything in Pt 53 that necessarily implies such a power. The respondents did not contend otherwise.

  2. The most relevant statutory provisions are to be found in Pt 3 of Ch 4 of the Criminal Procedure Act 1986 (NSW). By its long title the Criminal Procedure Act is:

“An Act relating to the prosecution of indictable offences … before the Supreme Court and District Court.”

  1. Chapter 4 (ss 170-257G) is headed “Summary Procedure”. By s 170(2), Pt 3 applies to proceedings before the Local Court, an Industrial Magistrate, and any other proceedings prescribed by the Criminal Procedure Regulation 2017 (NSW). That does not include proceedings in the District Court. However, by s 171(5) of the District Court Act, Pt 3 of Ch 4 of the Criminal Procedure Act applies to proceedings in District Court in its criminal jurisdiction.

  2. Part 3 of Chapter 4 (ss 220-232) is concerned with “Attendance of witnesses and production of evidence in lower courts”. Section 227(1) of the Criminal Procedure Act confers power on a court, on application by a person named in a subpoena, to set aside the subpoena in whole or in part. There is nothing in s 227 that expressly (or by implication) confers power on the court to make an order for costs in relation to such an application.

  3. Section 224, located in Ch 4, Pt 3 of the Criminal Procedure Act, provides:

“Unless a court otherwise orders, a subpoena issued at the request of a party other than a prosecutor who is a public officer or a police officer is not to require the person named to attend or produce any document or thing on any day on which his or her attendance is required unless an amount prescribed by the rules for the expenses of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.”

  1. The effect of s 224, as applied to the District Court by s 171(5) of the District Court Act, is to require that, unless the court otherwise orders, on service of a subpoena in the criminal jurisdiction of the District Court, the issuing party is to pay or tender an amount prescribed by the Rules (see District Court Rules r 53.21, above) for the expenses of complying with the subpoena (in default of which, it may be assumed, compliance with the subpoena is not required).

  2. As the Director has submitted, s 224 does not avail the respondents. The salient words of the section are:

“… a subpoena issued at the request of a party other than a prosecutor who is a public officer or a police officer …” (emphasis added)

The Director is clearly a prosecutor who is a “public officer”, to whom s 224 does not apply. Section 224 does not entitle the respondents to the costs of compliance with the subpoenas.

  1. The respondents sought to avoid this construction of s 224 by submitting that the section does not excuse a prosecutor who is a public officer or a police officer from the liability to pay compliance expenses; rather, it provides that the tender of money is not required at the time of service of the subpoena, and:

“… proceeds from the principled expectation that a party, who is compelled to produce by subpoena issued by a public officer (and a model litigant) could ordinarily act to comply with the subpoena on the assumption they will be fairly compensated for expenses incurred in doing so.”

  1. It is not necessary to engage with the somewhat strained construction sought to be placed by the respondents on s 224; even if that construction were correct, the respondents were unable to point to any other provision which would require the Director or other public officer prosecutor to pay “conduct money” or compliance costs.

  2. The Criminal Procedure Act is not a source of power for the District Court to make an order against the Crown (or the Director) for the costs of compliance with a subpoena issued in the criminal jurisdiction of that Court.

  3. The respondents relied on Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 33.11 as the source of power for the orders made by the primary judge. This reliance was misplaced. The explanation of why that is so is complex and requires focus upon a web of legislation.

  4. Uniform Civil Procedure Rules r 33.11(1) provides that the Court may order that a party to a proceeding who issues a subpoena is to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. By subr (2) the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs. By subr (3) an amount thereby fixed is separate from and in addition to any conduct money paid or witness expenses payable to the addressee.

  5. Prima facie the UCPR do not apply to criminal proceedings: UCPR r 1.5. However, by r 75.3(1) of the Supreme Court Rules 1970 (NSW) (“SCR”), certain provisions of the UCPR are made to apply to proceedings specified in the Third Schedule to the Supreme Court Act. Included as item (a1) in the Third Schedule are proceedings for the prosecution of offenders on indictment in the Supreme Court or in the District Court.

  6. Supreme Court Rules r 75.3(1) relevantly provides:

“(1) The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings specified in the Third Schedule to the [Supreme Court] Act and proceedings to which Division 2 [Summary Proceedings] applies:

…

(g) Part 33 (subpoenas), other than

…

if the issuing party is the Crown, rules … 33.11 …”

(italics added)

Thus, although Pt 33 of the UCPR is picked up by r 75.3(1)(g), subpoenas issued by the Crown are expressly excluded from the operation of UCPR r 33.11. (A qualification to the operation of Pt 75 in SCR r 75.1(2), which provides that the SCR do not apply to proceedings in the Court of Criminal Appeal, is not presently relevant).

  1. Section 171D of the District Court Act similarly picks up and applies UCPR r 33.11, but also subject to the exclusion in SCR r 75.3(1)(g). Section 171D provides that, so far as practicable, the procedure and practice of the District Court when exercising its criminal jurisdiction, shall be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction. By s 17(1) of the Supreme Court Act, that Act and the Rules made thereunder do not apply to criminal proceedings in the Supreme Court. However, that is subject to an exception. Section 17(2)(a) authorises the making of Rules “for regulating and prescribing the practice and procedure of the Court” in relation to, inter alia, proceedings specified in the Third Schedule (i.e., including criminal proceedings). Rule 75.3 of the SCR is such a rule. Accordingly, UCPR r 33.11 applies as part of the procedure and practice of the Supreme Court in the exercise of its criminal jurisdiction, but, by SCR r 75.3(1)(g)(ii) its application to subpoenas issued by the Crown is excluded.

  2. Thus, UCPR r 33.11 does not empower the District Court to make an order against the Director for the costs of compliance by a recipient of a subpoena issued at the request of the Director.

  3. The respondents nevertheless sought to rely on the decision of Beech-Jones J in Obeid at [32] as supporting a contrary conclusion. As outlined above, His Honour there considered that SCR r 75.3 reveals an intention to empower the (Supreme) Court in criminal proceedings to order an accused person to reimburse a third party for the reasonable costs of complying with a subpoena issued by the accused, but not for the litigation costs involved in any challenge or resistance to the subpoena. The difficulty with the respondents’ proposition is that that decision was concerned with a subpoena issued by an accused person, to whom the exclusions to which I have referred do not apply. Section 224 of the Criminal Procedure Act and the exclusion by the SCR of subpoenas issued by the Crown from the application of UCPR 33.11 in the criminal jurisdiction of the District Court make it clear that the power recognised by Beech-Jones J to order costs of compliance do not apply where the issuing party is the Crown (or the Director).

  4. In support of their argument that an express power to order costs of compliance in these circumstances exists, the respondents had two remaining arrows in their quiver. The first involved s 171(2)(k) of the District Court Act. Section 171 is located in Pt 4 of the District Court Act which is concerned with the criminal jurisdiction of that Court. By subs (1) of s 171, the opening section of Pt 4, the Rule Committee of the District Court is empowered to make Rules, not inconsistent with the District Court Act or any other Act, for criminal proceedings. Part 53 of the District Court Rules, referred to above, was made in the exercise of that power. Subsection (2) of s 171, without limiting the generality of subs (1), lists a range of specific matters with respect to which Rules may be made. Included in that list is para (k), which provides:

“(k)   subject to the Costs in Criminal Cases Act 1967, providing for matters relating to the payment of the costs of or in relation to proceedings and, in particular—

(i)   empowering the Court to order an Australian legal practitioner appearing in particular proceedings to disclose the amount of any costs that the Australian legal practitioner intends to retain out of any sum ordered by the Court to be paid to the Australian legal practitioner’s client, and

(ii)   empowering the Court to order the Australian legal practitioner for a party to particular proceedings personally to pay specified costs of the proceedings and to order further that the costs so specified not be recoverable by the Australian legal practitioner from the party.”

  1. The respondents contended that a power to order costs of complying with a subpoena is encompassed in that section. It is not necessary to decide whether s 171 of the District Court Act would authorise a rule for the payment of the costs of compliance with a subpoena issued in the criminal jurisdiction at the request of the Director; the fact is that, as the respondents acknowledged, no such rule has been made.

  2. The respondents next relied on s 149E(1) of the Criminal Procedure Act, which empowers the District Court, on or after the commencement of a trial in criminal proceedings, to make such orders, determinations or findings or give such directions or rulings as it thinks appropriate for the efficient management and conduct of the trial.

  3. The respondents contended that s 149E:

“vested [the District Court] with power to make an order that the [Director] pay costs incurred in compliance with the subpoenas by each of the Respondents”.

They argued that such a power was necessarily implied “by the width of the words in s 149E”. I am unable to agree. Section 149E(1) is plainly a case management provision, and, on its face, applies after the commencement of the trial. It does not assist the respondents in this matter. It could not remotely be construed as conferring power on the District Court to order the Director to pay the costs of complying with a subpoena.

An implied power to order the Director to pay the costs of complying with a subpoena?

  1. The respondents then argued that a power in the District Court to award costs is to be implied. Their argument was that such an implied power is necessary to give proper effect to the statutory grant of power regarding the issue, use and enforcement of subpoenas, and to enable the District Court “to act effectively within its jurisdiction” and that such a provision is “reasonably required or legally ancillary to the exercise of the specific powers” concerning subpoenas. The concepts and the language employed are drawn from decided cases.

  2. It may be accepted that the District Court has, in addition to powers expressly conferred, such additional powers as are necessary for the effective discharge of its jurisdiction. In Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 Dawson J (with whom the other members of the court agreed) said (at 16):

“…notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise … .”

and, at (17):

“…[r]ecognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’.”

  1. In BUSB v R (2011) 80 NSWLR 170; [2011] NSWCCA 39 Spigelman CJ (with whom Allsop P, Hodgson JA, McClellan CJ at CL and Johnson J agreed), after citing those extracts from Grassby, said (at [28]-[29]):

“The implied powers of a court are directed to preserving the ability of the court to perform its functions in the administration of justice and, in this respect, the administration of justice is to be regarded as a ‘continuous process not confined to the determination of the particular case’ …

The judgment in Grassby affirmed … that the test is one of necessary implication. (See also the authorities referred to in [John Fairfax Publications] at [35]-[36].)”

  1. In Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 (also cited by Spigelman CJ in BUSB) Gaudron, Gummow and Callinan JJ said (at [51]):

“The term ‘necessary’ in such a setting as this is to be understood in the sense given to it by Pollock CB in Attorney General v Walker [(1849) 3 Ex 242; 154 ER 833], namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in [the relevant provisions] of the District Court Act. In this setting, the term ‘necessary’ does not have the meaning of ‘essential’; rather it is to be ‘subjected to the touchstone of reasonableness’.”

  1. In R v JS (No 2) [2007] NSWCCA 309; 179 A Crim R 10 Spigelman CJ considered that the Court of Criminal Appeal had power, as part of its implied jurisdiction, to control abuse of its process, and, as an incident of that power, the power to order a person who has abused that process to pay the other party’s costs. It is unnecessary to consider whether such a power enures in the District Court; it could not reasonably be suggested that the issue of the subpoenas by the District Court at the request of the Director constituted an abuse of process. The JS principle does not arise for consideration.

  2. I am unable to find that the power to award costs in the present circumstances is “reasonably required or legally ancillary” to the exercise of the District Court’s power with respect to subpoenas, even importing into the determination considerations of reasonableness. Indeed, when the issue is perceived in the context of the legislation discussed above, the implication of such a power would be contrary to the clearly expressed intention of the legislature.

  3. The respondents’ final gambit was an appeal to the justice of their position. They contended that they had no ethical choice but to maintain the claim of client legal privilege and that that involved review of a vast amount of Crown material, provision of advice and drafting of submissions and that, in the interests of DK, they elected to be effectively represented at the hearing of the notices of motion.

  4. For a number of reasons I cannot accept those submissions. First, they are directed to the litigation costs of their notices of motion, a claim the respondents have abandoned. Second, it is not apparent to me on the evidence that it was necessary for them to review “a vast amount of Crown material”. Third, I do not accept that the respondents had no choice but to maintain the claim for client legal privilege. As I have mentioned above, the privilege was that of DK. The ethical duty or obligation of the respondents would have been sufficiently discharged by their notifying DK of the subpoenas, and advising the Court, on production of the documents, that they may be subject to a claim of client legal privilege. Thereafter, it was for DK, through whatever legal advisors he then had, to assert the claims. Fourth, as I have made plain above, an order for costs against the Crown (or the Director) in criminal proceedings must be sourced in enabling legislation. The respondents have been unable to identify any such legislation. The orders made by the primary judge were beyond power. They must be set aside.

  5. The orders I propose, in each appeal, are:

  1. The Director’s appeal upheld;

  2. The order made by the District Court on 9 March 2023 that the Crown pay costs reasonably incurred by the recipients of subpoenas addressed to LR, MB, ACLG and JC is set aside.

    1. WILSON J: I agree with the orders proposed by Simpson AJA for the reasons her Honour gives. I also agree with the further observations of Yehia J.

    2. YEHIA J: I have had the advantage of reading the judgment of Simpson AJA in draft. I am grateful for her Honour’s careful and comprehensive analysis of the issues and relevant legislation. I agree with her Honour’s proposed orders and with her Honour’s reasons.

    3. I add two brief observations. Firstly, I acknowledge that, depending upon the scope of a subpoena issued by the Crown and the volume of material in the possession of the receiving party, the costs incurred in identifying and collating documents, may be significant. In such cases, the inability to claim “conduct money” that a recipient may otherwise be entitled to, may cause an unfairness to the receiving party. This is particularly so where the receiving party is a sole practitioner or a legal practitioner working in a small law firm that has limited resources and staff.

    4. Secondly, in the absence of an express statutory power or an implied power to award “compliance costs”, a subpoena issued by the Crown should always identify with precision the documents for production, so as to reduce the costs associated with compliance.

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Amendments

10 November 2023 - Formatting in [2] and [17]

13 November 2023 - [83] "litigation changed to "legislation".

17 November 2023 - [72] bows replaced with arrows

Decision last updated: 17 November 2023

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Cases Citing This Decision

2

R v Rokomaqisa (No 6) [2025] NSWSC 1128
Sayer-Jones v The King [2024] NSWCCA 73
Cases Cited

16

Statutory Material Cited

11

Attorney-General of Queensland v Holland [1912] HCA 26
Attorney-General of Queensland v Holland [1912] HCA 26
BUSB v R [2011] NSWCCA 39