Wang v Farkas

In this matter before the Court of Appeal of New South Wales, the applicants, Mr Wang and others, sought judicial review of decisions made by the District Court concerning costs awarded in proceedings relating to apprehended violence orders. The primary dispute centred on whether a magistrate had the power to award costs to a litigant in person for the time spent prosecuting proceedings for an apprehended violence order, and whether such costs could be ordered jointly and severally against the defendants.

The court was required to determine two principal legal issues. Firstly, it had to consider whether the definition of "professional costs" under section 211 of the *Criminal Procedure Act 1986* (NSW) extended to compensation for the time of a litigant in person who was also a legal practitioner. Secondly, the court needed to ascertain whether it was open to the magistrate to make the defendants jointly and severally liable for the costs awarded in the proceedings.

The court reasoned that the phrase "professional costs" in section 211 of the *Criminal Procedure Act 1986* (NSW) was not confined to costs incurred by a party in engaging a legal practitioner, but could encompass the value of the time of a legal practitioner who represented themselves. The court applied the principle established in *Chorley* [1945] 1 All ER 192, which allows for the recovery of costs by a litigant in person who is a solicitor or barrister, to the interpretation of the NSW legislation. The court found that the magistrate had erred in law by failing to consider the possibility of awarding costs for the litigant in person's time and by not making the defendants jointly and severally liable for those costs.

Consequently, the Court of Appeal set aside the District Court's judgments and orders that had dismissed the appeal from the magistrate's costs order. The court substituted an order directing the District Court to set aside the magistrate's original costs order and enter judgment in favour of Mr Farkas for $22,315, effective from the date of the magistrate's order. Further orders were made regarding the costs of the appeal itself, with specific directions for the payment of expenses and disbursements, and liberty was granted for parties to file written submissions on costs.