The amount of costs must be just and reasonable. See further Quantum of costs at [56-120], below.

The onus is on the applicant for costs on the balance of probabilities: Dong v Hughes [2005] NSWSC 84. The applicant should specify the grounds on which the application is made.

Before making an order adverse to a party’s interests, the court must give them an opportunity to be heard. This includes in relation to a party seeking costs in circumstances where:

Restrictions are placed on awarding professional costs (as defined in s 211 Criminal Procedure Act) in favour of a defendant in committal proceedings (s 117(1)) or summary proceedings (s 214(1)), against police and public officers including council employees acting in an official capacity, and RSPCA officers. The test requires the court to be satisfied it is just and reasonable to award costs on one of the following grounds:

Each ground is discussed below.

Note:

the test is essentially the same as in the repealed Justices Act 1902 and, accordingly, some of the cases discussed below relate to the equivalent repealed provision.

An investigation which fails to meet optimum standards is not necessarily unreasonable. Equally, however, it might fairly be classed as unreasonable even though it does not fall grossly below those standards. The test is purely objective: JD v DPP [2000] NSWSC 1092 at [31]. It involves asking whether the purported unreasonable or improper manner had a bearing on whether the defendant might not have been found guilty or the proceedings might not have been brought: De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 at [22], [32]–[33].

In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264, the Court held the test, was whether on the facts known to the informant at the time proceedings commenced, there was no substantial prospect of success. If on the informant’s own version of events there was clearly no prospect of success, the proceedings will have been commenced without reasonable cause. It will not be unreasonable, however, to commence proceedings if success depends on one or more arguable points of law.

A person seeking costs must identify a matter that the prosecution was, or ought to have been, aware of, and that suggested the accused might not be guilty or that the proceedings should not have been brought: Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 at [20]; see also De Varda v Constable Stengord (NSW Police) at 22], [32]–[33].

The defendant must establish something about the conduct of the proceedings being an exceptional circumstance other than some matter referred to in subsections (b) or (c) of the relevant provision. The mere fact proceedings are resolved in the defendant’s favour is not enough: Fosse v DPP [1999] NSWSC 367 at [30].

“Exceptional circumstances” means what it says as a matter of ordinary English. Mere proffering of no evidence is not enough, nor is mere reliance on exculpatory statements of the defendant. Neither is remarkable in itself or in combination: Dong v Hughes [2005] NSWSC 84 at [48].

The court must be satisfied, on one of the grounds above, that it is “just and reasonable” to award costs. The meaning of “just and reasonable” was considered in Caltex Refining Co Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 552 at 563–564:

The defendant’s conduct in relation to the investigation or conduct of proceedings may be a factor to be considered when deciding whether it is “just and reasonable” to exercise the discretion. In Latoudis v Casey (1990) 170 CLR 534, Mason CJ said at 544:

See also Toohey J at 565.

But ordinarily, if a successful defendant makes out one or more of the grounds in ss 117 or 214 Criminal Procedure Act, they ought to be awarded costs.

To grant a certificate under s 2, the judge must be satisfied that:

The time when “proceedings were instituted” is the date a Court Attendance Notice is filed in the Local Court: Director of Public Prosecutions (NSW) v Rokomaqisa [2025] NSWCCA 112 at [90].

In R v McFarlane (unrep, 12/8/94, NSWSC) per Blanch J described the test as:

A legally aided applicant is not disentitled per se from recovering costs pursuant to the Costs in Criminal Cases Act: Rodden v R [2023] NSWCCA 202 at [107]–[135].

Pursuant to s 99(3), the court may, subject to s 99A, award professional costs to the applicant or defendant in apprehended violence order (AVO) proceedings. The amount of costs is to be just and reasonable: s 213(2) Criminal Procedure Act.

An order for professional costs against an unsuccessful applicant who is a protected person in AVO proceedings may only be made if satisfied the application was made frivolously or vexatiously: s 99A(1).

Professional costs cannot be awarded against a police officer who is an applicant in apprehended domestic violence order (ADVO) proceedings unless the court is satisfied the officer made the application knowing it contained a matter that was false or misleading in a material particular, or deviated from the reasonable case management of the proceedings so significantly as to be inexcusable: s 99A(2).

The mere fact a protected person in ADVO proceedings:

does not give rise to a ground to award costs against an applicant police officer in such proceedings: s 99A(3).

An application for costs must be brought (if at all) at the time of the discharge of the defendant (at the conclusion of committal proceedings) or at the time of the dismissal of the information (in a summary hearing: see Fosse v Director of Public Prosecutions (NSW) (1989) 16 NSWLR 540). After that time, the judge will be functus officio and have no power to hear a costs application.

Note:

There is no general power to order costs as a result of delay due to illness of the judge, legal representative or witness.

The costs ordered must be “just and reasonable” in all the circumstances. What will be just and reasonable will be determined from a consideration of all the relevant factors, bearing in mind the purpose of awarding costs. In Latoudis v Casey (1990) 170 CLR 534, Mason CJ said at 543:

It is an error to use the refusal to make a costs order to ameliorate the penalty. Any such amelioration should be by way of mitigation of a fine, not reducing the amount awarded as costs: Safework NSW v Williams Timber Pty Ltd [2021] NSWCCA 233 at [26], [41], [45].

Once the judge has decided to award costs, it is frequently useful to invite the parties to discuss quantum and to seek to reach an agreement. If unresolved, a hearing on quantum will be required. If that cannot be done on the day of the hearing, it is advisable to set a timetable requiring that evidence be filed and exchanged in affidavit form.

There is no applicable scale of costs.

It is advisable to request that an account of costs be provided to the court. A copy of the costs agreement between the solicitor and client can also be requested to determine what is “just and reasonable”.

The onus is on the party seeking costs to establish an entitlement to costs and that the claim is just and reasonable.

While costs are in the judge’s discretion, reasons must be provided for orders made in relation to costs: Ramskogler v DPP (NSW) (1995) 82 A Crim R 128.