Saadat-Talab v Australia Federal Police (No 2)

[2008] NSWSC 38

CITATION:	Saadat-Talab v Australia Federal Police (No 2) [2008] NSWSC 38
HEARING DATE(S):	28 November 2007
JUDGMENT DATE :	5 February 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J
DECISION:	The judgment of 28 November 2007, including any order as to costs, remains unaltered. Proceedings otherwise dismissed.
CATCHWORDS:	COSTS – appeal to Supreme Court from Local Court exercising summary jurisdiction – costs follow the event – Commonwealth to pay costs of the appeal.
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Mental Health (Criminal Procedure) Act 1990
CATEGORY:	Consequential orders
CASES CITED:	Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 R v JS (No 2) [2007] NSWCCA 309
PARTIES:	Shahrokh Saadat-Talab (Plaintiff) Australian Federal Police (Defendant)
FILE NUMBER(S):	SC 13072/2007
COUNSEL:	S Prince (Plaintiff) B Ingram (Defendant)
SOLICITORS:	Parish Patience Immigration Lawyers (Plaintiff) Commonwealth Director of Public Prosecutions (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	20265962/05/2; 20371933/06/2; 20371941/06/2
LOWER COURT JUDICIAL OFFICER :	Huber LCM
LOWER COURT DATE OF DECISION:	22 December 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

5 FEBRUARY 2007

13072/2007 Saadat-Talab v Australian Federal Police (No 2)

JUDGMENT

1 HIS HONOUR: On 28 November 2007, the Court issued orders granting the appeal of Mr Saadat-Talab. The appeal related to the decision of the Local Court refusing an application by Mr Saadat-Talab under s 32 of the Mental Health (Criminal Procedure) Act 1990. The learned magistrate took the view that the provisions of the State Act were not available in sentencing Mr Saadat-Talab because of inconsistent and specific Commonwealth legislation.

2 In the course of issuing that judgment, the Court made an order that the defendant, Australian Federal Police, pay the costs of and incidental to the proceedings as agreed or assessed, but granted liberty to apply, inter alia, on the question of the issue of costs. The Commonwealth made application that costs not be awarded to Mr Saadat-Talab and that the original order be amended.

3 Written submissions were filed by the Commonwealth and a short submission by the appellant. Those submissions concluded on or about 17 December 2007.

4 Initially the Commonwealth submitted that there was no power or jurisdiction reposed in the Court to award costs. Ultimately, in its submission of 5 December 2007, the Commonwealth resiled from that position and conceded that there was a power to award costs available under s 53(3)(a) of the Crimes (Appeal and Review) Act 2001. The power to award costs under s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 is a general implied power: R v JS (No 2) [2007] NSWCCA 309. The Commonwealth refers to s 70 of that Act, but s 70, which has no application to these proceedings, is a limitation on the power to award costs otherwise conferred.

5 At common law, costs were not awarded in criminal proceedings. However, once there is power to order costs such power should be exercised judicially (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 557-558). The exercise of the discretion judicially does not mean that the exercise of discretion is wholly unfettered. On one view no discretion is wholly unfettered. The majority of the High Court in Latoudis, supra, made clear that in ordinary circumstances, even in criminal proceedings, where there is jurisdiction to order costs an order should be made in favour of a defendant against whom a prosecution has failed. Justice McHugh, part of the majority, took the view that there was a reasonable expectation of the costs being awarded. In the course of the judgment, the Court said:

“To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs.” (Per Mason CJ at 542.)

6 In the current proceedings the Local Court, at the urging of the Commonwealth, took a view that s 32 of the Mental Health (Criminal Procedure) Act 1990 was not available in relation to a Commonwealth crime. The defendant below, having made the application under that section, and having had it refused, appealed to this Court. In the proceedings before this Court, the Commonwealth, once more, urged the correctness of the position adopted in the judgment below. The appeal was successful and the Court held that the learned magistrate was required to hear and determine the application that was made.

7 The Commonwealth submits that, in circumstances where, at this stage, it is unclear whether the application before the Local Court will be successful, costs of the appeal should be remitted to be determined by the magistrate below. The difficulty with such a proposition is that it is unfair for the appellant to bear the costs of the appeal in circumstances where the court below adopted a course urged by the Commonwealth, and that course has been held to be wrong.

8 The appeal proceedings are separate and distinct from the proceedings for summary conviction and I do not consider the submissions of the Commonwealth sufficient to overturn the ordinary rule that costs should follow the event.

9 The “event” in relation to these proceedings, is the success of the appeal and the judgment of 28 November 2007, including any order as to costs, remains unaltered. I should clarify that no party agitated, and I do not decide, the issue of whether an appeal of this kind is a “criminal proceeding”. The proceedings are otherwise dismissed.

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