Legal Research
Cases
R v Kellson

R v Kellson

Case [2024] NSWDC 137 23 April 2024

Costs

Appeal

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Kellson [2024] NSWDC 137
Decision date: 23 April 2024
Jurisdiction: Criminal
Before: Hanley SC DCJ
Decision:
Appeal dismissed

Catchwords:
Criminal Law - Costs - Appeal to District Court from Magistrate’s decision to award costs in favour of the Aboriginal Legal Service

Legislation Cited:
Crimes (Appeal and Review) Act 2001, ss 23(2)(b), 27(2)
Criminal Procedure Act 1986, ss 213, 211, 214, 215
Legal Aid Commission Act 1979, ss 42, 44

Cases Cited:
Acuthan v Coates (1986) 6 NSWLR 472
Bolton v Stange [2001] WASCA 34
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Gundry v Sainsbury [1910] 1 KB 645
Halliday v Sacs Group Pty Ltd (1993) 67 ALJR 678
Hawksford v Hawksford [2005] NSWCS 463
Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152
Johnson Tiles P/L and Anor v Esso Aust P/L and Ors (No 2) [2003] VSC 212
Kelly v Noumenon Pty Ltd (1988) 47 SASR 182
Latoudis v Casey (1991) 170 CLR 534
Law Society of NSW v Foreman (1994) 34 NSWLR 408
Ly v Jenkins (2001) 187 ALR 178
McCullum v Ifield (1969) 2 NSWR 329
McNab v DPP [2021] NSWCA 289
New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR(NSW) 50
Oshlack v Richmond River Council [1998] HCA 11
Police v Horsfield; Police v Dowd [2013] NSWLC 17
Rodden v R [2023] NSWCCA 202
Shaw v Yarranova Pty Ltd [2011] VSCA 55
State of NSW v Robinson [2019] HCA 46
Trevorrow v State of South Australia (No 7) [2008] SASC 5
Wentworth v Rogers (2006) 66 NSWLR 474

Category: Principal judgment
Parties: NSW Police (Appellant)
Bradley James Kellson (Respondent)
Representation:
Ms T Epstein, Counsel for NSW Police
Mr D Mulligan, Counsel for the Respondent

File Number(s): 2021/00323050

JUDGMENT

Background

On 14 July 2023, the learned Magistrate at the Blacktown Local Court awarded costs in favour of the respondent pursuant to s 213 of the Criminal Procedure Act 1986 (NSW) (CPA). Her Honour had acquitted the respondent of a criminal charge laid pursuant to section 58 Crimes Act 1900 (CA) on the basis his arrest was unlawful. He was represented by the Aboriginal Legal Service (ALS) at the hearing. This is an appeal from the order awarding costs.
Section 213 of the CPA enables the Court to award professional costs to an accused person at the end of summary proceedings if the matter is dismissed or withdrawn, in an amount the Magistrate considers “just and reasonable”. Professional costs are defined in s 211 of the CPA as “costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court”.
Pursuant to s 214, professional costs are not to be awarded unless the Court is satisfied as to any one or more of the following:

that the investigation into the alleged offence was conducted in an unreasonable or improper…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kellson

Details

AGLC: R v Kellson [2024] NSWDC 137
Case: [2024] NSWDC 137
Decision Date: 23 April 2024

CaseChat Overview and Summary

The case of R v Kellson involved an appeal from a decision made by a magistrate, which awarded costs to the Aboriginal Legal Service. The matter was heard in the District Court, where the decision to award these costs was challenged. The appellant, Kellson, argued against the magistrate's decision, claiming that the costs should not have been awarded to the Aboriginal Legal Service under the circumstances presented.

The legal issues before the District Court centred on whether the magistrate correctly exercised their discretion in awarding costs to the Aboriginal Legal Service and whether the criteria for such an award were appropriately applied. The court was required to determine if there were any errors in the magistrate's decision-making process and whether the award was justified under the applicable legal principles.

In delivering the judgment, the District Court considered the relevant legal framework governing the award of costs in criminal matters, particularly focusing on the discretion of the magistrate. The court examined the arguments presented by both parties and assessed whether the magistrate's decision was supported by the evidence and legal principles. Ultimately, the District Court found no basis to overturn the magistrate's decision, concluding that the magistrate correctly exercised their discretion and that the award of costs was appropriate. Consequently, the appeal was dismissed.

As a result of the court's decision, the original order awarding costs to the Aboriginal Legal Service was upheld. The appellant's appeal was dismissed, and no further orders were made.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Kellson [2024] NSWDC 137

Cases Citing This Decision

No citing cases yet.

Cases Cited

Rodden v R [2023] NSWCCA 202
Citation 1 (Para 9)

…The Court of Criminal Appeal (NSW) decision in Rodden v R [2023] NSWCCA 202 did not seek to step away from the indemnity rule or the principles it has referred in this appeal. The issue was whether the provisions of the Legal Aid Commission Act 1979 (NSW) (LAC Act) accommodated the indemnity rule. (By contrast Mr Ro…
Ulladulla Creative Images Pty Ltd ACN 089 098 073 v Ian Tibbles [2021] NSWCA 289
Citation 2 (Para 7)

…The appellant requires the demonstration of factual, legal, or discretionary error to succeed ( McNab v DPP [2021] NSWCA 289 at [24]).…
New South Wales v Robinson [2019] HCA 46
Citation 3 (Para 4)

…to charge the respondent and therefore ought to have either not arrested him or discontinued the arrest at the scene as per State of NSW v Robinson [2019] HCA 46…
Police v Horsfield; Police v Dowd [2013] NSWLC 17
Citation 4 (Para 22)

…f a judgment by (as he then was) Magistrate Buscombe (erroneously referred to as “Buskin” in the transcript) in Police v Horsfield; Police v Dowd [2013] NSWLC 17 ( Horsfield and Dowd ). He claimed that supported a submission that costs were only awarded to ALS in circumstances where, as they had for Horsfield , pr…
Shaw v Yarranova Pty Ltd [2011] VSCA 55
Citation 5 (Para 4)

…this is the requirement of the applicant to be liable for his/her legal costs and disbursements in the subject proceedings. (Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [8], Mandie JA).…
Trevorrow v State of South Australia (No 7) [2008] SASC 5
Citation 6 (Para 54)

…The respondent relies upon Trevorrow v State of South Australia (No 7) [2008] SASC 5, after analysis of the above cases, Gray J concludes [17] “ the indemnity principle is a flexible principle, designed to allow for a just and fair result”.…
Wentworth v Rogers & Anor [2007] HCATrans 747
Citation 7 (Para 5)

…If no costs were incurred by the applicant (e.g., self-represented) than an order for costs cannot be made. (Wentworth v Rogers (2006) 66 NSWLR 474 at [45] (Santow JA), [102]-[103] (Basten JA at [122])).…
Wentworth v Rogers [2006] NSWCA 145
Citation 8 (Para 5)

…If no costs were incurred by the applicant (e.g., self-represented) than an order for costs cannot be made. (Wentworth v Rogers (2006) 66 NSWLR 474 at [45] (Santow JA), [102]-[103] (Basten JA at [122])).…
Hawksford v Hawksford [2005] NSWSC 463
Citation 9 (Para 4)

…Campbell J in Hawksford v Hawksford [2005] NSWSC 463 at [46] to [49] endorsed Pincus J’s approach to the doctrine of deemed retainer in the NSW context in that there was a presumption “that a liability of a person to a solicitor for costs arises if it is established that the solicitor was acting for that person wit…
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 2) [2003] VSC 212
Citation 10 (Para 5)

…ement that an applicant is not liable for costs of his/her solicitor in any circumstances. (Johnson Tiles P/L and Anor v Esso Aust P/L and Ors (No 2) [2003] VSC 212 at [127] – [127])…
Ly v Jenkins [2001] FCA 1640
Citation 11 (Para 67)

…The Federal Court considered the issue of whether a public prosecutor could recover costs not incurred in Ly v Jenkins (2001) 187 ALR 178 ( Ly v Jenkins ). The costs were sought to cover work done by a third party that was a proxy to the prosecuting body which was a party to proceedings. The relevant provisions in th…
Bolton v Stange [2001] WASCA 34
Citation 12 (Para 3)

…In Bolton v Stange [2001] WASCA 34 (Bolton), this doctrine was considered in the context of the West Australian Aboriginal Legal Service where Templeman J, in allowing the appeal relied upon the doctrine in Hudgson of deemed retainer and at [7] reasoned:…
Oshlack v Richmond River Council [1998] HCA 11
Citation 13

…ensatory, the very possibility of an adverse costs order focuses the mind of the moving party in commencing the proceedings or laying charges : see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [68] per McHugh J (Oshlack). Although more difficult to obtain in criminal proceedings because of the gateway imposed by s…
Law Society of New South Wales v Foreman [1994] NSWCA 69
Citation 14 (Para 74)

…espondent refers to the importance of organisations such as ALS is often recognised by the Court as it was by Kirby P in Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 420:…
Halliday v SACS Group Pty Ltd [1993] HCA 13
Citation 15

…Stange [2001] WASCA 34 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Gundry v Sainsbury [1910] 1 KB 645 Halliday v Sacs Group Pty L td (1993) 67 ALJR 678 Hawksford v Hawksford [2005] NSWCS 463 Hudgson v Endrust (Australia) Pty Lt d (1986) 11 FCR 152 Johnson Tiles P/L and Anor v Esso Aust P/L…
Latoudis v Casey [1990] HCA 59
Citation 16 (Para 1)

…An award of costs to a litigant is compensatory in civil and criminal proceedings. (McHugh J in Latoudis v Casey (1991) 170 CLR 534 at 567)…
Hudgson v Endrust (Australia) Pty Ltd [1986] FCA 190
Citation 17

…tion (1981) 147 CLR 297 Gundry v Sainsbury [1910] 1 KB 645 Halliday v Sacs Group Pty L td (1993) 67 ALJR 678 Hawksford v Hawksford [2005] NSWCS 463 Hudgson v Endrust (Australia) Pty Lt d (1986) 11 FCR 152 Johnson Tiles P/L and Anor v Esso Aust P/L and Ors (No 2) [2003] VSC 212 Kelly v Noumenon Pty Ltd (1988) 47 SASR 182 Latoudis v Casey (1991)…
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26
Citation 18

…s Cited: Acuthan v Coates (1986) 6 NSWLR 472 Bolton v Stange [2001] WASCA 34 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Gundry v Sainsbury [1910] 1 KB 645 Halliday v Sacs Group Pty L td (1993) 67 ALJR 678 Hawksford v Hawksford [2005] NSWCS 463 Hudgson v Endrust (Australi…
Pty Ltd v Federal Commissioner of Taxation 381 US 479
Citation 19

…gal Aid Commission Act 1979, ss 42, 44 Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472 Bolton v Stange [2001] WASCA 34 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Gundry v Sainsbury [1910] 1 KB 645 Halliday v Sacs Group Pty L td (1993) 67 ALJR 678 Hawksford v Hawksford [2005] NSWCS 463 Hudgson v Endru…
[1910] 1 KB 645 [1910] 1 KB 645
Citation 20

…LR 472 Bolton v Stange [2001] WASCA 34 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Gundry v Sainsbury [1910] 1 KB 645 Halliday v Sacs Group Pty L td (1993) 67 ALJR 678 Hawksford v Hawksford [2005] NSWCS 463 Hudgson v Endrust (Australia) Pty Lt d (1986) 11 FCR 152 Johns…
Law Society of NSW v Foreman 98 ER 1385
Citation 21 (Para 74)

…In this respect the respondent refers to the importance of organisations such as ALS is often recognised by the Court as it was by Kirby P in Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 420:…

Legislation Cited

Criminal Procedure Act 1986 (NSW) 211, 213, 214, 215
5 mentions (from Para 1)
Crimes (Appeal and Review) Act 2001 (NSW) 23(2)(b), 27(2)
3 mentions (from Para 5)
Legal Aid Commission Act 1979 (NSW) 42, 44
3 mentions (from Para 9)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Cases Act 1967 (NSW)
1 mention (from Para 9)
Justices Act 1902 (NSW)
1 mention (from Para 41)
Magistrates (Summary Proceedings) Act 1975 (Vic)
1 mention

Medium Neutral Citation:	R v Kellson [2024] NSWDC 137
Decision date:	23 April 2024
Jurisdiction:	Criminal
Before:	Hanley SC DCJ
Decision:	Appeal dismissed
Catchwords:	Criminal Law - Costs - Appeal to District Court from Magistrate’s decision to award costs in favour of the Aboriginal Legal Service
Legislation Cited:	Crimes (Appeal and Review) Act 2001, ss 23(2)(b), 27(2) Criminal Procedure Act 1986, ss 213, 211, 214, 215 Legal Aid Commission Act 1979, ss 42, 44
Cases Cited:	Acuthan v Coates (1986) 6 NSWLR 472 Bolton v Stange [2001] WASCA 34 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Gundry v Sainsbury [1910] 1 KB 645 Halliday v Sacs Group Pty Ltd (1993) 67 ALJR 678 Hawksford v Hawksford [2005] NSWCS 463 Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152 Johnson Tiles P/L and Anor v Esso Aust P/L and Ors (No 2) [2003] VSC 212 Kelly v Noumenon Pty Ltd (1988) 47 SASR 182 Latoudis v Casey (1991) 170 CLR 534 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Ly v Jenkins (2001) 187 ALR 178 McCullum v Ifield (1969) 2 NSWR 329 McNab v DPP [2021] NSWCA 289 New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR(NSW) 50 Oshlack v Richmond River Council [1998] HCA 11 Police v Horsfield; Police v Dowd [2013] NSWLC 17 Rodden v R [2023] NSWCCA 202 Shaw v Yarranova Pty Ltd [2011] VSCA 55 State of NSW v Robinson [2019] HCA 46 Trevorrow v State of South Australia (No 7) [2008] SASC 5 Wentworth v Rogers (2006) 66 NSWLR 474
Category:	Principal judgment
Parties:	NSW Police (Appellant) Bradley James Kellson (Respondent)
Representation:	Ms T Epstein, Counsel for NSW Police Mr D Mulligan, Counsel for the Respondent
File Number(s):	2021/00323050