Wilson v Commissioner of Police, NSW Police Force

[2025] NSWSC 820

Supreme Court

New South Wales

Medium Neutral Citation:

Wilson v Commissioner of Police, NSW Police Force [2025] NSWSC 820

Hearing dates:

17 April 2025

Date of orders:

25 July 2025

Decision date:

25 July 2025

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

(1)   The plaintiff’s summons is dismissed.

(2)   The plaintiff is to pay the first defendant’s costs.

Catchwords:

ADMINISTRATIVE LAW — whether reviewable error of law — error of law on the face of the record

COSTS — judicial review of a costs decision by a Magistrate in a criminal matter — whether jurisdictional error or error of law on the face of the record

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW)

Crimes Act 1900 (NSW) s 307B

Crimes (Appeal and Review) Act 2001 (NSW) s 11

Criminal Procedure Act 1986 (NSW) ss 213, 214

Road Transport Act 2013 (NSW) s 177

Supreme Court Act 1970 (NSW) s 69

Cases Cited:

Gatenby v Duncombe [2015] NSWSC 551

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40

Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1

O’Brien v Hutchinson [2012] NSWSC 429

Category:

Costs

Parties:

Glenn Stewart Wilson (Plaintiff)
Commissioner of Police, New South Wales Police Force (First Defendant)
Local Court of New South Wales (Second Defendant)

Representation:

Counsel:
Plaintiff (self-represented)
D Reynolds (First Defendant)

Solicitor:
Crown Solicitor’s Office (First and Second Defendants)

File Number(s):

2024/00421979

JUDGMENT

1. In 2018, the plaintiff was charged with knowingly give false information to a public authority contrary to s 307B(1) of the Crimes Act 1900 (NSW), with a backup charge of failure by a responsible person to disclose driver’s details contrary to s 177(1) of the Road Transport Act2013 (NSW). The plaintiff pleaded not guilty to those charges. A trial, interrupted by the COVID-19 pandemic, took place at Parkes on 16 February 2021 and 17 February 2021, via AVL at Sydney on 17 November 2021, and at Parkes on 19 October 2022 and 1 November 2022. On 20 February 2023, her Honour McCarron LCM dismissed the charges. An application was made for costs pursuant to both the Costs in Criminal Cases Act 1967 (NSW) and the Criminal Procedure Act 1986 (NSW) (“the CP Act”). That application was refused on 2 May 2023. The plaintiff filed a Summons for Judicial Review in the Supreme Court which came before Ierace J on 13 February 2024. By consent, her Honour’s decision of 2 May 2023 was quashed, and the plaintiff’s costs application was remitted to her Honour. On 13 June 2024, there was a remitted costs hearing before her Honour. The plaintiff claimed professional costs in the amount of $122,392.64. On 13 August 2024, her Honour granted the plaintiff’s costs application and ordered that the defendant pay the plaintiff’s professional costs pursuant to ss 213 and 214 of the CP Act in the amount of $41,196.32 (“the Costs Decision”). On 11 November 2024, the plaintiff filed a summons in the Supreme Court seeking judicial review of the Costs Decision.

2. The plaintiff seeks the following orders:-

1. Order that the Magistrate’s decision be varied to pay the full legal professional costs claimed of $122,392.64.

2. Order that the NSW Police Prosecution under the NSW Police Commissioner pay the plaintiff $81,196.32.

3. Order that the NSW Police Prosecution under the NSW Police Commissioner pay the plaintiff the total court fees payable to the NSW Supreme Court for this judicial review.

3. The plaintiff appeared unrepresented. Mr Reynolds appeared for the first defendant. The second defendant filed a submitting appearance.

4. For the reasons that follow, I dismiss the plaintiff’s application.

Grounds of review

5. The plaintiff relies on 12 grounds of review as follows:-

“1   The Magistrate in her decision stated dates of hearings before her in case number 2018/00329844 that are totally incorrect. Which questions if the Magistrate decision is based on the relevant case history.

2   The Magistrate stated that the plaintiffs submissions were voluminous, and because of that she was only going to highlight those submissions she thought were relevant for her to make a determination of the proceedings before her. The Magistrate has failed to properly consider all the submissions from the plaintiff placed before the court in determining what are just and reasonable costs to compensate the plaintiff for the forced requirement to obtain proper legal representation to defend against the charges and claims made by the police that were all shown to be completely unreliable and false police evidence.

3   The Magistrate failed to consider the time taken for the plaintiff legal representatives to examine every claim of evidence supplied to the court in the police brief of evidence that were all stated by the plaintiff to be false, all the claims of evidence in the police brief supplied to the Court were all shown to be false.

4   The Magistrate has failed to properly consider the legal representation costs by the plaintiff in case 2018/00329844 when it was originally before Magistrate Stewart.

5   The Magistrate failed to consider or correct her original statements of facts from her decision hearing of 20 February 2023 and repeated in her original decision hearing on costs on 2 May 2023, where the Magistrate made multiple statements of evidence against the plaintiff and the plaintiff witnesses that are totally contradicted in the face of the evidence as stated in the court transcripts, as well as repeating police evidence, that was later accepted by the court to be false evidence. Which resulted in the Magistrate stating she did not positively accept the plaintiff and witness evidence. This statement by the Magistrate is based on her own incorrect notes of stated evidence during the court hearings. This false conclusion of reservation by the Magistrate is therefore still affecting her discretionary decision on the quantum of costs.

6   The Magistrate made a statement of consideration from the prosecution that the plaintiff made a forensic decision that lengthened the hearing, The Magistrate failed to reject this claim, which leaves the situation that the Magistrate accepts this situation. This is another incorrect claim by the prosecution accepted blindly by the Magistrate.

7 The Magistrate failed to state any other consideration of submissions made by the plaintiff in relation to s214(a) and made no considerations in relation to submissions of s214(b) and (c) and (d) of the Criminal Procedures Act, and therefore the legal professional expenses incurred in preparation for these stated police failures of evidence that were shown and proven to the court in hearings. Including a second sworn written police statement that was proven and accepted in the court that the OIC had swapped mobile phone numbers in the police evidence, and the multiple failures of the police prosecutor to properly enquire into the evidence that was being presented to the court that later was proven to be false. This is admitted swapping of mobile phone numbers by the police OIC as recorded in the court transcripts is one of the ignored statements by the Magistrate as explained at 5 above.

8   The Magistrate failed to consider any special circumstances of the plaintiff legal representatives costs in preparation of evidence to the court that resulted in the police witness Mr Gabell admitting in the witness stand that the OIC had originally supplied him with information that was later repeated in a written police witness statement prepared by police with a different signature of that witness Mr Gabell. That numerous claims stated in the police brief of evidence of Mr Gabells observations were also shown to be false claims of police evidence.

9   The Magistrate failed to state any consideration of the special circumstances on the plaintiffs legal costs, where this Local court case was before the Local Court for some four and half years, with multiple adjournments by the prosecution in the first 2 years. There were no adjournments requested by the plaintiff at any time from 2018 to 2023 during this case before the Local Court.

10   The Magistrate failed to properly consider the preparation taken by the Plaintiff legal representation and therefore the legal costs for three independent witnesses discovered late by the plaintiff that gave testimony in the court hearings which showed the police and prosecution claims of evidence supplied previously to the Court to be false.

11   The Magistrate failed to properly consider the delay and the time taken by the plaintiff legal representation in examining and researching the police subpoenaed phone records, which were not supplied by prosecution to the defence and discovered by the Magistrate in her chamber during hearings, which forced an adjournment by another prosecution failure, and the time required by the plaintiff legal representatives to examine the police evidence claims from these phone records, that was latter admitted by the police OIC in testimony 9 months later to the Court in cross examination to be false claims of evidence.

12   The Magistrate failed to properly consider that after the plaintiff elected to the District Court in 2019 after a late added charge of attempt to pervert the course of justice, that the DPP refused to take the case to a District Court Judge because in the DPP opinion the case had little to no chance of a successful prosecution. That then the NSW police prosecution insisted in running what was later proven as described by the DPP, to be a doomed case to fail, and the forced continuing costs to the plaintiff, as well as the costs to the NSW courts over the following four years.”

[sic]

Legislative Framework

6. McCarron LCM ordered the Commissioner to pay the plaintiff’s professional costs pursuant to ss 213 and 214 of the CP Act. Those sections, to the extent that they are relevant to this application, are as follows:-

213   When professional costs may be awarded to accused persons

(1)  A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

(2)  The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.

…

(5)  The order must specify the amount of professional costs payable.

214 Limit on award of professional costs to accused person against prosecutor acting in public capacity

(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following—

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.

…

7. The charges having been dismissed (s 213(1) of the CP Act), her Honour found that police conduct following a recorded interview with the plaintiff satisfied s 214(1)(a) of the CP Act, and she made an order for costs that she considered just and reasonable in favour of the plaintiff: see s 213(2) of the CP Act.

Submissions

8. The plaintiff provided extensive written submissions which I have reviewed and considered in their entirety. He supplemented them with oral submissions before me.

9. The plaintiff essentially made two complaints, both of which are more fully detailed in the 12 grounds of review noted above, in the lengthy documents contained in the Court Book and in his affidavit affirmed on 9 April 2025. The first complaint is that her Honour made errors of fact in coming to her conclusion that the charges against him were not proved beyond reasonable doubt, some of which are allegedly repeated in her Costs Decision. The second complaint is that her Honour erred in law by failing to award him costs in the sum he claimed. As to the first complaint, I observe that unlike an appeal to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) when a person has been convicted, there is no appeal on any matter when a person has been acquitted. As to the second complaint, I note that there is no appeal or merits review from a Magistrate’s decision pursuant to s 213 of the CP Act. The plaintiff’s rights are therefore limited to an application in this Court for judicial review of the decision.

10. Mr Reynolds provided written submissions dated 20 March 2025. He elaborated on those submissions before me.

11. It was submitted that the materials served by the plaintiff do not disclose any jurisdictional error or error of law on the face of the record. With respect to grounds 1, 5 and 6, Mr Reynolds submitted that each ground was an attempt to assert an error of fact or to reagitate the merits of the application.

12. Mr Reynolds said of the remaining grounds that they “complain of a failure to give proper consideration to the plaintiff’s submissions and/or evidence, are based on a misunderstanding of the ‘failure to consider’ ground of judicial review, and in any event are plainly wrong.”

13. The defendant fairly and respectfully reformulated the plaintiff’s grounds of review as follows:-

1. Ground 1: the Magistrate incorrectly stated the dates of particular hearings. The defendant submitted that this ground invites impermissible scrutiny with an eye keenly attuned to error. Even if there were such an error, the defendant submitted that it would be an error of fact, which the Court does not have jurisdiction to review.

2. Ground 2: the Magistrate failed to consider all the plaintiff’s submissions. The defendant submitted that the obligation of the Magistrate was to have regard to the submissions as a whole, rather than to consider every individual submission. It was submitted that it was plain from the transcript that her Honour did consider the submissions as a whole.

3. Ground 3-4, 8-11: the Magistrate failed to consider the time taken for the plaintiff’s representatives to examine every item of evidence (and other formulations of a failure to consider the costs incurred by the plaintiff, both before her Honour and Stewart LCM). The defendant submitted that her Honour said in her reasons that she was provided with a breakdown of professional costs and invoices, to which she had regard. The defendant submitted that it is not possible, in those circumstances, for the Court to find that McCarron LCM did not have regard to the costs incurred by the plaintiff.

4. Ground 5: the statement of facts in the acquittal decision was incorrect. The defendant submitted that it is not open to the plaintiff on this application to challenge the findings made in the acquittal decision to the extent that there were any. It was submitted that the premise of the costs application is the decision upon which it is based, and so the findings of fact in the acquittal decision could not be impugned in the costs application.

5. Ground 6: the Magistrate wrongly accepted a submission that the plaintiff made a forensic decision which lengthened the hearing. The defendant submitted that this was an alleged error of fact which could not be reviewed on this application, and that it was not in fact an error.

6. Ground 7: the Magistrate failed to state that she had considered multiple submissions made by the plaintiff with respect to s 214(1)(a), and gave no consideration to the plaintiff’s submission in relation to ss 214(1)(b), (c) and (d). The defendant submitted that it was not necessary for the Magistrate to engage in a line-by-line refutation of each item of evidence, particularly where the submission was made by the plaintiff with respect to the preliminary hurdle in s 214(1), rather than the discretionary exercise of determining the quantum of costs.

7. Ground 12: The defendant submitted that this was a complaint that the Magistrate failed to consider a particular proposition of fact that the plaintiff asserts to be true, and for which there is no evidence. The defendant repeated the submissions made with respect to grounds 1, 2 and 7, that is, that her Honour only had to consider the submissions as a whole, rather than each individual proposition. The defendant further submitted that the plaintiff had misstated the evidence in the ground, as there was never any evidence that the Director of Public Prosecutions said what was asserted to have been said.

14. Mr Reynolds directed the Court to various parts of McCarron LCM’s judgment in his oral submissions which he said were of particular relevance to this application.

15. First, at the remitted costs hearing on 13 June 2024, her Honour told the plaintiff that she had not “had an opportunity to fully read through all the documentation”. Her Honour also said:-

“I think that your written submissions cover every aspect of the hearing and I just have to remind you that this is not an opportunity to correct any factual issues that you say are incorrect throughout the hearing. … I note in your written submissions that throughout those written submissions you make note of evidentiary errors.”

16. The defendant submitted that her Honour had already embarked upon a consideration of the plaintiff’s submissions at the time of that hearing, but that she reserved her decision to have an opportunity to fully consider them. The defendant pointed to the fact that the Magistrate reserved her decision for approximately two months before delivering ex tempore reasons on the Costs Decision. Mr Reynolds submitted that this was consistent with giving the parties’ submissions extensive consideration.

17. The defendant submitted that her Honour’s ex tempore judgment demonstrated that she had fully considered the plaintiff’s submissions on his application for costs. Relevantly, on the fourth page of her Honour’s reasons, she said:-

“Mr Wilson’s submissions are voluminous. Because of that I shall only highlight those submissions that in my opinion are relevant to the determination of the proceedings before me.

I have been provided with a detailed critique on the way in which the investigation was conducted and all its asserted shortcomings. To paraphrase, he takes issue with almost the entirety of the police investigation, submitting the police failed to investigate properly, omitted relevant material from police statements, constructing the statement of Mr Gable and to that end taking advantage of him, the police told untruths and were effectively out to get him describing the matter as a malicious prosecution.

Mr Wilson’s application relies on s 214 subs (a), (b), (c) and (d). He submits at length as to the relevance of each criteria and how it applies. There is a degree of repetition and overlap. Whilst the onus of proof to establish one of the four factors rests on the successful defendant it should be noted that Mr Wilson is not represented in this application. He is the author of his submissions. Therefore in my view he should be afforded a degree of latitude with respect to how he attempts to establish the criteria and indeed which is the most relevant.

It is not necessary for the Court to be satisfied all subsections the applicant needs only persuade the Court that one has been established for the Court to consider exercising its discretion.

Whilst there is some merit in the applicant’s submission as to the police investigation and its varying deficiencies what is most persuasive is the manner in which the allegation was investigated, more specifically the police conduct during the ERISP.

Mr Wilson submits he was subjected to a barrage of police intimidation, harassment and threats as was his family submitting the following.”

18. McCarron LCM set out the evidence on the application at pp 5-7 of her Honour’s judgment. At pp 7-8, her Honour found that the criteria in s 214(1)(a) were satisfied, that is, that the investigation into the alleged offence was conducted in an unreasonable or improper manner. This was a finding in favour of the plaintiff.

19. After having found in the plaintiff’s favour, her Honour stated (at p 8):-

“I now turn to quantum. Section 213(5) requires the order to specify the amount. I have been provided a breakdown of professional costs amounting to the sum of $122,392.64 and I have had regard to that document and the attached invoices.”

20. At p 11, her Honour explicitly stated that she had considered a number of matters on the application:-

“…In coming to a determination of what I consider to be just and reasonable I have had regard to the representations under the hand of Omar Juweinat solicitor made on 9 September 2019 seeking to have the matter withdrawn. Those representations were not successful.

I note and I have considered the number of appearances prior to the substantive hearing and I have taken this into account.

I have had regard to the nature of the charges and the length and complexity of the brief.

I have had regard to the objective criminality of the charges.

I have considered the issues in dispute and what was ultimately a narrow question for the Court’s determination.

I have taken into account the length of the hearing proper, being some four days with an additional day for decision.

I recognise Mr Wilson is entitled to legal representation of his choice and in exercising that choice he chose to engage a solicitor based in Sydney which necessarily added to his legal expenses. In addition, he sought as is his right, to instruct counsel. I note that counsel was also based in Sydney out of Forbes Chambers.

I have taken into account the current market value for both solicitor and counsel, their rates as to preparation, appearance and disbursements. For those reasons set out above,

I ASSESS THE AMOUNT OF $41,196.32 AS JUST AND REASONABLE IN THE CIRCUMSTANCES.”

21. For reasons that follow, I accept the defendant’s submissions with respect to the plaintiff’s application, and I dismiss the Summons.

Consideration

22. In O’Brien v Hutchinson [2012] NSWSC 429 (“O’Brien”), Beech-Jones J, as his Honour then was, examined the authorities with respect to an application for review of a decision under s 214 of the CP Act refusing an application for costs. While here the plaintiff is applying for review of a decision to grant his application for costs (about which there appears to be no authority), his Honour’s remarks in O’Brien are nonetheless apposite.

23. His Honour said, at [4], that the Court’s supervisory jurisdiction conferred by s 69 of the Supreme Court Act 1970 (NSW) extends only to review for jurisdictional error or error of law on the face of the record, and is not an appeal or merits review. His Honour further noted at [5] that, in the case of an error of law, the “record” is confined to documentation which initiated the application, the pleadings (if any), the orders made and the reasons of the inferior court or tribunal. However, the Court can take account of any admissible material where jurisdictional error is alleged.

24. At the outset, I observe that grounds 1, 5 and 6 invite the Court to find errors of fact. To do so would be impermissible on this application and those grounds cannot be upheld. In any event, ground 5 alleges errors of fact in a decision about which the plaintiff has not applied for review (and arguably could not apply for review, the decision having resulted in his acquittal). Those grounds must therefore fail.

25. With respect to the remaining grounds of review, the plaintiff alleges that McCarron LCM failed to consider various mandatory considerations. In O’Brien, Beech-Jones J said at [8]-[14]:-

“First, the formulation of jurisdictional error that I have extracted from Craig involves establishing that the inferior court “misapprehended” the limits on its power. … The plaintiff must identify a “misapprehension” by the Local Court as to the limits on its power, not a mere disagreement with the Local Court’s conclusion as to those limits. …

…In Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 the Full Court of the Federal Court noted that conclusions on matters of “opinion or policy or taste” may be “very much a matter of opinion and thus not readily susceptible to review for error of law” (at 199G). Similarly, conclusions by the Local Court as to whether or not failure to take some particular step in the investigation process was “unreasonable” or not can be very much a matter of opinion….

In other cases a party may point to a disparity between the facts as found and the lower court’s conclusion as demonstrative of error. However, it must be remembered that a number of phrases in s 214(1) are not technical legal phrases but words which have a “common understanding”. To demonstrate legal error in this latter type of case it would have to be demonstrated that, on the facts as found, no other conclusion was reasonably open other than that the criteria was established (Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24] to [28], per Gleeson CJ, Gummow and Callinan JJ).

Fourth, a relevant misapprehension is not demonstrated by pointing to a list of matters the court could have, or even should have, taken into account but did not or by pointing to matters the court did take into account, but should not have. In Craig at 180, the High Court held:

“... a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.”

It is only if one took the further step of inferring that, because the inferior court took into account some irrelevant matter or failed to take into account some relevant matter, it thereby misconstrued a limit on its power would any contention based on a failure to take into account relevant considerations or taking into account irrelevant considerations suggest the existence of jurisdictional error.

Fifth, the failure to take into account a relevant matter or the taking into account of an irrelevant matter by an inferior court might constitute an error of law on the face of the record even if it does not constitute a jurisdictional error. However, the relevant transgression would have to be apparent on the face of the “record”. It could not be demonstrated by pointing to a wider set of materials. Moreover, the relevant “matter” would have to be a factor or consideration that as a “matter of law” the lower court was required to consider, or exclude, as the case maybe. Such matters are ascertained from the legislation governing the case in question (see in the context of an administrative decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [73] to [74], per McHugh, Gummow and Hayne JJ). They are not identified by preparing a list of “facts” that it is said should have been considered but were not, or were considered but should not have been.

Sixth, the material placed before me included the transcript of an ex tempore judgment of the second defendant. It is well recognised that, given the prodigious workload carried by the Local Court, the transcript of such reasons are not to be construed strictly. Instead their substance is to be examined to see whether the correct test was applied (Acuthan v Coates (1986) 6 NSWLR 472 at 478 - 479A, per Kirby P).”

26. The starting point for determining an application for judicial review on the ground of failure to consider a mandatory consideration is Mason J’s judgment in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40. At [39], his Honour set out the following propositions which are relevant to the plaintiff’s application in this case:-

“(a) The ground of failure to take into account a relevant consideration can only be made out if a decision·maker fails to take into account a consideration which he is bound to take into account in making that decision.

…

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

…

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.”

(citations omitted)

27. In Gatenby v Duncombe [2015] NSWSC 551, Adams J said at [22]:-

“Judgments on costs are to some degree sui generis. In Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; 20 VR 481, Maxwell P and Kellam JA observed –

‘[12] In the ordinary case, it is both appropriate and desirable that a costs question be decided at the conclusion of argument. Rarely will it be necessary for a judge to give detailed reasons for decision adverting to every matter debated in argument. This Court will assume, as should the parties, that every matter addressed in argument on costs has been considered. This Court will set its face against any proposition which would require judges disposing of questions of costs to give elaborate reasons.’”

28. His Honour then considered the plaintiff’s ground of review that the Magistrate had failed to consider whether the police had conducted reasonable investigations. His Honour addressed the plaintiff’s submissions with respect to that ground and concluded at [24]:-

“Otherwise, the arguments were put to the Magistrate and it should be inferred that his Honour considered them all and was not satisfied the investigations were conducted unreasonably.”

29. In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (“Goundar”), Robertson J, dealing with a provision of the Migration Act 1958 (Cth), stated at [56]:-

“…[W]here a discretion is unconfined by the terms of the statute, a court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40;162 CLR 24 at 39-40. While I accept that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, I do not accept that any particular statement in the representations should be so characterised.”

30. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, McHugh, Gummow and Hayne JJ said at [69] that s 430 of the Migration Act 1958 (Cth) “entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”. In Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1, French CJ and Kiefel J said of that statement that it, “of course, does not mean that a matter not mentioned in the s 430 statement was not considered” (at [31]).

31. In Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151, Besanko, Barker and Bromwich JJ examined the provision discussed in Goundar and said (at [41]):-

“The starting point is the terms of s 501CA(4) of the Act. One of the matters which engages the power to revoke a prior cancellation is that the person given the invitation under s 501CA(3) by the Minister has made representations to the Minister. Although the subsection does not say so in express terms, the representations must be considered by the Minister. They are, as the Minister accepted, a mandatory relevant consideration (Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451 (Tickner v Chapman)). However, they are a mandatory relevant consideration as a whole and not as to the individual statements contained in the representations.”

32. Their Honours agreed with Robertson J’s statement of principle in Goundar at [56]. At [46]-[49], their Honours said:-

“46   Insofar as the primary judge is suggesting in [42] of his reasons (set out above at [29]) that a decision-maker is required to make a finding of fact with respect to every claim made or issue raised by an applicant, we do not agree. A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality…

…

48   Generally, an obligation to give reasons does not require a “line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal”. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence…

49   It is generally not essential for a tribunal or other primary decision-maker to refer to every piece of evidence or contention advanced by a claimant. …”

33. From these authorities emerges the uncontroversial proposition that her Honour did not have to refer to every submission made by the plaintiff in coming to her conclusion in the Costs Decision. Her Honour was only required to give adequate reasons for her decision based on the submissions and material before her.

34. The following can be readily discerned from her Honour’s Costs Decision:-

1. Her Honour read the plaintiff’s written submissions and heard the plaintiff’s oral submissions;

2. Her Honour had regard to the plaintiff’s submissions as a whole and took them into account in arriving at her decision;

3. Her Honour reviewed and had regard to all the material which the parties provided to her and took that material into account in arriving at her decision;

4. Her Honour reviewed and had regard to both a document setting out the plaintiff’s professional costs of the matter and the invoices attached to that document and took them into account in arriving at her decision;

5. Her Honour explicitly stated that she had regard to (and I find that she did have regard to):-

1. The number of appearances prior to the substantive hearing;

2. The nature of the charges and the length and complexity of the case;

3. The objective criminality of the charges;

4. The issues in dispute and the questions for the Court’s determination;

5. The length of the substantive hearing;

6. The plaintiff’s entitlement to legal representation and counsel of his choice and his exercise of that choice; and

7. The current market value for both solicitor and counsel, including their rates as to preparation, appearance and disbursements.

35. I observe that McCarron LCM’s reasons for the Costs Decision were given ex-tempore. They were carefully crafted, and in my opinion it is abundantly clear that she applied the correct test pursuant to the CP Act in determining the plaintiff’s application. Further, it is beyond doubt that her Honour did not ignore any mandatory consideration which was material to her decision. As set out above, although it was not necessary to do so, her Honour expressly stated that she had regard to virtually all of the considerations which could possibly have been taken into account when making an order pursuant to s 213 of the CP Act.

36. Grounds 2-4 and 7-12 of the plaintiff’s application must fail on that basis.

37. The plaintiff has failed to establish any jurisdictional error or error of law on the face of the record.

Orders

38. I make the following orders:-

1. The plaintiff’s summons is dismissed.

2. The plaintiff is to pay the first defendant’s costs.

**********

Decision last updated: 25 July 2025