Wilson v Commissioner of Police, NSW Police Force

1. [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 Act 2013 (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. [2]

   The plaintiff seeks the following orders:-

   1. (1)

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

   2. (2)

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

   3. (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. [3]

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

4. [4]

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

Grounds of review

1. [5]

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

Legislative Framework

1. [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:-

2. [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

1. [8]

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

2. [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.

3. [10]

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

4. [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.

5. [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.”

6. [13]

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

   1. (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. (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. (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. (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. (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. (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. (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.

7. [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.

8. [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:-

9. [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.

10. [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:-

11. [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.

12. [19]

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

13. [20]

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

14. [21]

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

Consideration

1. [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.

2. [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.

3. [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.

4. [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]:-

5. [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:-

6. [27]

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

7. [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]:-

8. [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]:-

9. [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]).

10. [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]):-

11. [32]

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

12. [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.

13. [34]

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

    1. (1)

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

    2. (2)

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

    3. (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. (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. (5)

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

14. [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.

15. [36]

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

16. [37]

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

Orders

1. [38]

   I make the following orders:-

   1. (1)

      The plaintiff’s summons is dismissed.

   2. (2)

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