EFG v Secretary, Department of Communities and Justice

1. [1]

   BASTEN AJ: The applicant has challenged the validity of a decision of the Secretary, Department of Communities and Justice, that an amount be paid by way of costs pursuant to a certificate granted under the Costs in Criminal Cases Act 1967 (NSW) (Costs Act). The plaintiff claims the payment in fact made, of $188,172.20, was unlawfully inadequate.

Factual Background

1. [2]

   The plaintiff was charged with three counts of sexual intercourse without consent and one count of attempted sexual intercourse without consent, being conduct in relation to one female complainant, occurring in the course of one evening in a residential college of a university. The plaintiff entered pleas of not guilty and was acquitted by a jury following a trial in the District Court in May 2022. A non-publication order has been made in these proceedings in relation to details which might lead to the identification of the plaintiff. [1] (A similar statutory protection exists in relation to the identity of the complainant.)

2. [3]

   Following the not guilty verdicts, the plaintiff made an application for a certificate under the Costs Act, relying upon fifteen matters of which it was said that, had the prosecution been in possession of the relevant evidence before instituting the proceedings, it would not have been reasonable to institute them. The trial judge accepted that those matters, taken in combination, supported that conclusion. Although some were matters which lay within the knowledge of the accused, but not the prosecution, the judge was also satisfied that failures to disclose those matters pre-trial were not acts or omissions of the accused that contributed to the institution or continuation of the proceedings. Accordingly, on 6 July 2022, the trial judge directed that a certificate under the Costs Act be granted to the plaintiff. (Although s 6 of the Costs Act baldly states that “No certificate … shall be admissible in evidence in any proceedings”, that cannot be taken to prevent the admission of a certificate in proceedings where the existence of the certificate is a precondition to a party’s claimed entitlement.)

3. [4]

   On 9 October 2023, the solicitors for the plaintiff made an application for payment of costs pursuant to the certificate, seeking an amount of $515,523.21. The General Counsel of the Department, as the delegate of the Secretary, determined that a payment be made in an amount of $188,172.20. [2] That determination is the subject of the present application for judicial review.

4. [5]

   The figure was reached by a two-stage process. The first step was an assessment of the “maximum amount” incurred, being those costs which were determined to have been “reasonably incurred” in the proceedings the subject of the certificate. The removal of items which were found not to satisfy that test resulted in a figure of $419,976.07. The second step involved the assessment of amounts to be allowed for those items in accordance with the Attorney General’s payment rates for solicitors and counsel, as in force at the relevant times. Those are the rates generally applied to lawyers in private practice acting for government officers and agencies.

5. [6]

   The determination was made on 25 June 2024 and conveyed, with reasons, in a letter dated 26 June 2024. On 8 July 2024 the plaintiff’s solicitors wrote to General Counsel, disputing aspects of the assessment. On 14 August 2024 a response provided further detail as to the reasons for the determination. It was agreed that the Court could view both letters as constituting the reasons for the determination.

Application for judicial review

1. [7]

   On 25 October 2024, the plaintiff filed a summons seeking judicial review. An extension of time was required pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Pt 59, r 10. There was no opposition to the extension, in circumstances where the parties had been in communication following the decision and where the delay was limited to one month. Time should be extended accordingly.

2. [8]

   The summons joined both the Secretary and the State of New South Wales as defendants. The operative orders sought in the amended summons included both a declaration that the Secretary’s determination was invalid and an order setting it aside. Further, the amended summons sought an order that the defendants pay the plaintiff the amount determined by General Counsel as the “maximum amount”, namely $419,976.07. Although the plaintiff sought orders for payment and costs against both defendants, the Secretary’s determination was the authority for a payment from the Consolidated Fund. [3] The State defended the proceeding, presumably on the basis that the decision-maker should not be an active party, in accordance with the Hardiman principle. [4]

3. [9]

   Whether an order for payment could properly have been made in these proceedings may be put to one side: the significance of the proposed order is that it reflected the absence of a challenge to the first stage of the Secretary’s decision-making.

4. [10]

   As the case turned on the proper construction of s 4(1)-(4) of the Costs Act, it is convenient to set out those provisions here: [5]

5. [11]

   There is no doubt that s 4(2) of the Costs Act confers a discretionary power. Indeed, read with subs (3), it incorporates three discretionary determinations. The first requires the Secretary to form the opinion that the making of a payment “is justified”. That a determination may be made refusing any payment is confirmed by sub-s (4), which itself provides two bases for refusing to make a payment, namely where it is “not justified” and where “costs are otherwise recoverable”. The words in parentheses, “without limitation”, suggest that those grounds are not intended to be exclusive. [6] It is not necessary to explore what might justify refusal to make a payment because this aspect was determined favourably to the plaintiff; that is a payment was to be made.

6. [12]

   The second element of the s 4(2) discretionary power involves determining “the amount of costs that should be paid”. That exercise is subject to a cap, identified as “the maximum amount referred to in sub-section (3)”. The third exercise of discretion is the determination of the cap. However, as that sets a limit to the amount which should be paid, determination of the cap is an exercise antecedent to the operative determination. Each of these elements is better described as the exercise of an evaluative judgment than as a discretionary decision. However, the principal issue in this matter was the determination to apply a particular scale. It was that approach which was said to result in a manifestly unreasonable outcome.

7. [13]

   To the extent that the plaintiff submitted that any amount less than the “maximum amount” would involve an unlawful determination, that submission was inconsistent with the conferral of a power subject to a cap. However, s 4(2) cannot be construed as a power only to make the payment that, in the opinion of the Secretary, “would reasonably have been incurred for costs”. That point of construction disposes of the principal contention in the plaintiff’s case, as will be explained further below.

8. [14]

   The sole ground of review alleged that the exercise of the discretion under s 4(2) of the Costs Act was “unreasonable”. There were seven particulars purporting to identify elements of unreasonableness. Three focussed on the application of the Attorney General’s rates: pars (c), (d), (e). Somewhat confusingly, two alleged the taking account of an “irrelevant consideration”; one being the Attorney General’s rates (par (c)), the other being “the incorrect view that senior counsel appeared with a junior, whereas senior counsel appeared alone”: par (f). An “irrelevant consideration” is a matter which, expressly or by implication, the statute prohibits being taken into account. [7] A mistake of fact cannot be dressed up as an error of law by characterising it as an irrelevant consideration. As to (f), the mistake lay in the pleading, not in the determination under review.

9. [15]

   Another particular alleged a failure to comply with “the purpose” of the Costs Act: par (a). That appears to have been a pleading of an error of law in failing to make a payment reflecting the full amount of the reasonable costs incurred by the plaintiff. That understanding was consistent with par (b), which complained of a reduction below the amount already determined as “reasonable costs”. Finally, par (g) stated that it was “contrary to the practice of the Department over many years from the commencement of [the Costs Act], which was to pay such costs on a party and party basis”. This implied that there had been a change in policy and the change was capricious or arbitrary and, in that sense, contravened the legal standard of reasonableness sufficient for judicial review of an individual determination made under the new policy.

Relevant legal principles

1. [16]

   Before turning to the detail of the statutory scheme, it is convenient to set out the principles relied on by the plaintiff in his claim that the Secretary’s determination was unreasonable. First, the plaintiff explained that the justification for challenging the determination on a range of grounds, all characterised as rendering the determination unreasonable, was to be found in the joint reasons of Hayne, Kiefel, and Bell JJ in Minister for Immigration and Citizenship v Li: [8]

2. [17]

   After referring to the “close analogy between judicial review of administrative action and appellate review of a judicial discretion”, [9] the joint reasons concluded:

3. [18]

   It is doubtful whether the joint reasons in Li were intended to encourage pleading which rolled specific grounds of judicial review into a catch-all characterisation of unreasonableness. Such a course may lead to analysis at a level of generality which tends to obscure the particular error relied upon as rendering a decision invalid. Where the law requires that a specific matter be taken into consideration, which matter has been ignored, it is helpful to plead the ground in that way. If, in another case, the pleader accepts that the decision-maker did consider the matter, but gave it insignificant weight, then a question of unreasonableness may properly be relied upon. Similar problems of imprecision can arise where a failure to address a significant point raised by an applicant is not pleaded as a failure by the decision-maker to carry out his or her proper function according to law, but as procedural unfairness. [10] Even unreasonableness has on occasion been conflated with procedural unfairness, in a “loose” sense. [11] A preferable approach may be seen in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah, [12] where Gaudron J stated:

4. [19]

   There is also a danger in identifying the ground of unreasonableness as a breach of a statutory obligation to exercise a power reasonably. [13] In the past, deployment of labels such as “Wednesbury unreasonableness” or “manifest unreasonableness” helped to fix the level of scrutiny which was applied to the exercise of a discretionary power. As explained by Gageler J in Li:

5. [20]

   After referring to the analogous principles governing appellate review of the exercise of judicial discretion, Gageler J continued:

6. [21]

   In Minister for Immigration and Border Protection v Stretton, [14] Allsop CJ observed:

7. [22]

   These views are not heterodox. The High Court revisited the unreasonableness ground in Minister for Immigration and Border Protection v SZVFW. [16] There, Kiefel CJ, who had been a party to the joint reasons in Li, stated:

8. [23]

   In SZVFW, Gageler J observed:

9. [24]

   Other members of the Court spoke in similar terms to those set out above. [18] Finally for present purposes, in Minister for Home Affairs v DUA16, [19] a judgment of the Court stated:

Statutory scheme

1. [25]

   There may be some uncertainty as to the proper calculation of the maximum amount in accordance with s 4(3) of the Costs Act. The calculation of costs reasonably incurred may require reference to two separate elements. The first is whether the activity (item) the subject of each charge was a reasonably necessary part of the legal services being provided. The concept of “over-servicing” is familiar. There is no doubt that the Secretary is entitled to form an opinion as to what items were reasonably necessary and what were not. To the extent that the Secretary undertook that function no challenge was made, subject to one possible qualification noted below. The second element is to determine the reasonableness of the rate at which each item is charged. On one view, the “maximum amount” calculated in accordance with sub-s (3) should also identify the reasonable rate in relation to each particular item. It is not clear that the Secretary took the latter step. The Departmental policy and procedure document in evidence tended to confirm that the reasonableness of the rate actually charged is not separately considered, because the amount to be paid is calculated by reference to the Attorney General’s rates.

2. [26]

   The distinction between item and rate is, in any event, not always precise or easily applied. For example, the Secretary rejected items charged in relation to an apprehended violence order obtained by the complainant. Those items were found not to fall within the scope of the certificate. That was one issue. Had they fallen within the scope of the certificate, there might have been questions as to (i) whether counsel had been briefed to deal with the matter; (ii) if counsel had been briefed, whether it was reasonably necessary to brief counsel; (iii) if so, whether the number of hours counsel spent on that matter was reasonable; and, finally, (iv) the reasonableness of the rate at which counsel charged.

3. [27]

   Each of these considerations involves a separate exercise in assessing the reasonableness of particular costs. In an age when time costing is the norm, it does not follow that an assessor must accept whatever period of time a lawyer claims to have spent on a particular activity as reasonable. Nor was the Secretary bound to accept the lawyer’s rates quoted to the client as necessarily what was reasonable, although they formed a cap on the amounts charged.

4. [28]

   If the Secretary did not attempt to determine whether the rates at which solicitor and counsel charged were “reasonable”, because the exercise being undertaken was ultimately to apply the Attorney General’s charging rates, it may be that that exercise of determining the “maximum amount” was incomplete. However, if the reasonableness of the charging rates had been addressed, the maximum amount could not have been greater than that in fact determined; it would probably have been lower. That would not have assisted the plaintiff. On the other hand, if the Secretary was bound to pay the amount calculated by reference to a rate which renders the charge “reasonably incurred”, the Secretary should be allowed to complete the process. Thus, even on the plaintiff’s case, the Secretary would not be bound to pay a “maximum amount” which had been accepted without assessing the reasonableness of the rates applied.

Consideration of ground (f)

1. [29]

   The qualification noted at [25] above in relation to the rejection of particular items was the complaint in particular (f) that the Secretary formed an incorrect view that senior counsel had appeared with a junior, whereas senior counsel appeared alone. It is convenient to address that matter before turning to the application of the Attorney General’s rates. First, as a factual matter, there was no evidence to suggest that the Secretary misunderstood the arrangements with respect to appearances at the trial. Rather, on 1 February 2024, whilst the application was being considered, an officer in the Department raised with the plaintiff’s solicitor the use of senior counsel at the trial:

2. [30]

   The first letter of 26 June 2024 conveying reasons for the determination did not address that dispute. However, the second letter of 14 August 2024 did, stating under the heading, “Reasonableness of Senior Counsel”:

3. [31]

   The letter set out reasons for that determination, responding to three points identified in the plaintiff’s submission of 28 February 2024. The first point, that there were several incidents arising out of a single episode, was said not to warrant briefing senior counsel. A second point, alleging the vulnerability of the plaintiff to the “ruthless and devious” complainant, was rejected as a not unusual factor. As to the third point, relying on the complexity of the factual circumstances, the reasons noted that the relationship between the plaintiff and the complainant was of “relatively short duration”, and the initial brief “only comprised three folders in total”. It was further noted that no complex legal issue had been relied on. These reasons raised matters requiring an evaluative judgment on the part of the Secretary; they demonstrated an evident and intelligible justification, which was not in any sense arbitrary or irrational.

4. [32]

   In written submissions, the plaintiff’s counsel asserted that there was a “fundamental error in the approach to the assessment of fees”, the fees of senior counsel being assessed “on the basis that he was retained in addition to Junior Counsel.” [21] Despite an impassioned plea in senior counsel’s submissions in reply, there was no attempt to demonstrate legal unreasonableness in refusing to pay senior counsel’s rates for the trial. Counsel’s submissions appeared to fall within the terms of the warning given by Gleeson CJ and McHugh J more than 25 years ago in Minister for Immigration and Multicultural Affairs v Eshetu: [22]

5. [33]

   The reason that the Secretary disallowed fees at a rate for senior counsel was that the matter was not one of sufficient complexity or difficulty as to warrant the briefing of senior counsel. In response, a vituperative attack was made on the honesty of the complainant and the “irremediable harm,” which would have been done to the plaintiff had he been imprisoned. There was no evidence before this Court as to the character of the complainant and the submissions were inappropriate for that reason, apart from the language involved. Secondly, many persons facing a custodial sentence if convicted face trial every day represented by junior counsel. The plaintiff was undoubtedly entitled to brief senior counsel, but it did not follow that the Secretary acted unreasonably in declining to assess counsel’s fees on the basis of an agreed payment to senior counsel of $9,000.00 a day. The Secretary’s determination in that respect was neither manifestly unreasonable, nor irrational: it was supported by clear reasons, as indicated above. Particular (f) must be rejected.

6. [34]

   The remaining issues turn on whether the Secretary acted legally unreasonably in applying what were described as the Attorney General’s rates.

Determining applicable rates

1. [35]

   As Gageler J observed in Li at [108], an important constraint on a court being satisfied that an administrative decision-maker has acted unreasonably arises where the exercise of power is legitimately informed by considerations of policy. This is such a case. In determining the hourly and daily rates to be applied to the work reasonably undertaken, the letter of 14 August 2024 stated:

2. [36]

   The statement of the Attorney General’s rates for legal representation described the rates as payable to “legal representatives … engaged by and on behalf of Government departments and agencies and public officials.” The document also stated:

3. [37]

   The plaintiff submitted that the policy was not engaged in its terms. First, it was primarily intended to apply to legal representatives appearing for the Government and its agencies. Insofar as it was said to apply in relation to the Costs Act, that was explicable on the same basis, because there were circumstances recognised in that Act where the Minister could be represented to deal with evidence of further relevant facts. [23]

4. [38]

   That submission cannot be accepted. A policy is not to be read with an eye attuned to fine distinctions. The ordinary meaning of the passages set out above, read as a whole, is that the rates apply in determining payments pursuant to a certificate under the Costs Act. There would be no need to deal with Government representation in proceedings under the Costs Act because they would fall within what was conceded to be the primary operation of the policy, namely payment of lawyers representing the Government and its agencies. Further, the plaintiff’s argument did not address the combined reference to the Suitors’ Fund Act 1951 (NSW) and the Costs Act. Both provide for certificates whereby costs of private litigants may be met, in defined circumstances, from the public purse. The possibility that some different meaning might be given to the words in relation to the Costs Act (because the Minister has a right of appearance in such proceedings), which does not apply in relation to the Suitors’ Fund Act, is inconsistent with basic principles of construction. The preferred reading of the policy is that it does apply, in its terms, to the determination of an amount to be paid pursuant to a Costs Act certificate.

5. [39]

   Even were that not correct, there was a further document, promulgated by the Department, which commenced with the following statement:

6. [40]

   That is, the Department’s own policy for dealing with applications under the Costs Act expressly adopted the Attorney General’s rates. The submission to the contrary was without substance. To describe the Attorney General’s rates as “an irrelevant consideration” was misconceived: particular (c) must be rejected.

7. [41]

   Once it is accepted, as it must be, that s 4(2) of the Costs Act envisages payments which do not reach the maximum amount of reasonably incurred costs, there must be some scale of fees which can be applied by the Secretary. There is no constraint expressed in the Costs Act which precludes the Secretary from adopting any scale which he or she, acting reasonably, considers appropriate. Even if there were no published policy applying the Attorney General’s rates in assessing the amount to be paid under a Costs Act certificate, there is no reason why the Secretary could not apply them.

8. [42]

   Although particular (e) stated that adoption of the Attorney General’s rates resulted in discrimination between civil and criminal matters, that was not true in terms of the rates themselves: they applied in both areas. The further complaint was that the rates departed from (were lower than) the costs commonly awarded on a party and party basis in civil matters. If consistency with civil matters were necessary, they were to be applied to civil matters – in assessing costs for a certificate granted under s 6 of the Suitors’ Fund Act.

9. [43]

   In the final analysis the complaint was simply that the Secretary was bound to determine the amount payable on a certificate under the Costs Act as if conducting a party and party assessment as between parties in civil proceedings. Again, there is nothing in the Costs Act which requires the Secretary to adopt a level of hourly and daily rates which would be adopted in such party and party assessments. To imply such a requirement would be inconsistent with the express language envisaging a power to determine a lesser amount than the “reasonably incurred costs”, which, on one view, might require such an assessment. (On the other hand, there is no statutory constraint which would preclude such a course.)

10. [44]

    The plaintiff relied on two further submissions to support its challenge to the adoption of the Attorney General’s rates.

11. [45]

    The first submission relied, somewhat obscurely, on words used in the course of the Second Reading speeches for the Costs in Criminal Cases Bill in March 1967 in the Legislative Assembly and the Legislative Council. The purpose of the exercise was to find language consistent with the proposition that a party to whom a certificate had been issued should receive the total amount of the reasonably incurred costs. The exercise was akin to reading tea leaves and equally unproductive. The discussion in the Second Reading speeches was at a high level of generality; the Minister spent much time addressing the situation in England before announcing that “this State has adopted in entirety the principles espoused by the English Government”. [24] The precise language in which those “principles” were expressed in the English legislation in force almost 50 years ago was not revealed in the Second Reading speech, nor was it revealed in material before this Court. The only proposition which is clear from the discussion and comments of the then Minister for Justice, Mr Maddison, is that taxing (assessing) costs was an “absurd” proposition and that “the sort of case we are talking about is a quick and ready assessment of costs where necessary that can be met by quick payment”. [25]

12. [46]

    A further insurmountable problem with reliance on the Second Reading speeches in 1967 was that, in the Costs Act as enacted, s 4 was in quite a different form from its current emanation. The present provision was substituted for the original provision in 1998. [26]

13. [47]

    The second, and equally problematic, approach proffered by the plaintiff was to rely upon a “practice” of assessing costs by reference to the principles adopted in assessing party and party costs in civil matters. The evidence in support of the existence of such practice was twofold. The first item was an advice given by the then Solicitor General, Keith Mason QC, in 1996 which referred to the practice in those terms. That statement was made by way of introduction to the issue raised for advice, which was as to “the proper method of determining the amount that would reasonably have been incurred for costs by an applicant”, which is not the test under the present s 4(2), but is used in relation to the “maximum amount” in subs (3). The information relied on by the Solicitor General as to past practice was found in two letters, written by the Director-General and the Attorney General in July and September 1993 respectively. Four comments may be made in respect of that material: (i) it revealed a concern in 1996 as to whether existing practice was appropriate, desirable or necessary; (ii) it identified a practice in place 30 years ago and in the absence of any statutory direction; (iii) it related to a practice which predated the current form of the legislation; and (iv) to the extent it remains relevant to the current legislation, it addressed the calculation of costs reasonably incurred, not the determination of the amount payable. Whilst no objection was taken to the admissibility of such material, it may be disregarded as having neither relevance nor weight.

14. [48]

    The second item of evidence was a letter set out in Stanizzo at [15] which stated:

15. [49]

    The reference in Stanizzo to “the Attorney General’s Guidelines” suggests that there had been a change in policy since that which preceded the 1998 replacement of s 4, discussed in the Solicitor General’s 1996 advice, casting further doubt on reliance on that document.

16. [50]

    Putting to one side the flimsy evidential basis for the content of a practice in earlier times, the submission must fail because there can be no unlawfulness in simply varying an administrative practice applying one set of rates to apply another, where both are permissible. The contention that any unexplained change in practice must be “arbitrary” is fundamentally erroneous. Even adopting long-since discarded terminology, the plaintiff can have had no “legitimate expectation” that his application would be assessed in accordance with a particular policy or practice, when the policy and practices as presently applied were publicly available.

17. [51]

    Nor was senior counsel for the plaintiff able to identify any case in which such a general proposition as that proposed by him had been accepted. Indeed, administrative law principles set themselves against reliance on practices or policies to fetter administrative decision-making. [27] This was not a case where a promise had been made to the plaintiff, but not fulfilled. And even if there had been such a promise, the general rule is that no equivalent to estoppel by representation can narrow the scope of a statutory discretion. [28] In similar terms, Mason CJ stated in Attorney General (NSW) v Quin: [29]

18. [52]

    Rather, where a procedural promise is made on which the promisee can be expected to rely, notice should be given of an intention to abandon the promised procedure.

19. [53]

    Even if the rates currently adopted in the Attorney General’s guideline were lower than those adopted in the past, by comparison with other measures of identifying reasonably incurred legal costs in relation to private practice (a fact not established by the evidence), that would not demonstrate that the rates applied were legally unreasonable. The fact that the rates are applied on a daily basis by the many lawyers in private practice who do State Government work precludes acceptance of such a conclusion.

20. [54]

    Once it is accepted, as a matter of statutory construction, that the Secretary was empowered to pay a lesser amount than that identified as “the maximum amount that … would reasonably have been incurred for costs”, it must also be accepted that, in its terms, s 4 does not identify constraints on how that lesser amount is to be determined. It is therefore necessary to look at implied constraints, if any.

21. [55]

    One inference, which should be accepted, is that the amount to be paid is to be determined by reference to the circumstances of the individual case. Unlike the cap in the Suitors’ Fund Act, the Costs Act cap is not an arbitrary figure but is determined by reference to the circumstances of the case. It might, therefore, be legally unreasonable for the Secretary to work upon the basis of a fixed sum maximum amount, regardless of the circumstances of the particular proceeding the subject of a certificate. However, that did not happen.

22. [56]

    It is not possible to imply a requirement that the costs be subject to the kind of assessment which is made in civil cases in accordance with the terms of legislation governing the legal profession. (That would be contrary to the Minister’s intention expressed in the Second Reading speech relied on by the plaintiff.) Even in civil cases, that course is not always taken as, for example, when a court makes a gross sum costs order. [30] Although it was not adopted in this case, it would be difficult to see why the Secretary could not adopt a broad-brush approach in determining, by reference to such factors as the length of the trial and the complexity of the issues involved, a figure for a particular case. Whether that approach is desirable, is one consideration; to say that, if adopted, it would be legally unreasonable is quite another.

23. [57]

    Although other approaches might be relied on by analogy, a reference to “party and party costs” is no more than an analogy. The government bears the costs of meeting a certificate under the Costs Act because of the public interest in reimbursing a person found not guilty of criminal charges for at least part of the costs incurred in defending the charges. The government is not in the same position as an opposing party in civil proceedings. Nor is there a clear analogy with solicitor and client costs: the government is not in a contractual relationship with the plaintiff. The plaintiff’s objection to reliance on the Attorney General’s rates might also have applied to costs rates applicable to civil proceedings, if consistency of approach were adopted.

Findings as to particulars

1. [58]

   For all the reasons discussed above, particular (b), which alleged unreasonableness in awarding any other amount than that determined as the “reasonable costs incurred”, must be rejected.

2. [59]

   Reliance on “past practice” (particular (g)) assumed that some form of restraint, not expressed in the statute, operated as an estoppel against the government. This was not a case where the government had made a representation which was relied upon by the plaintiff. On the contrary, there was in evidence a published statement by the Department as to the basis upon which such applications would be determined. Particular (g) must be rejected.

3. [60]

   Insofar as there was a statement of policy, the Secretary applied the policy. There is nothing in s 4 of the Costs Act which prohibits such a scale of rates being taken into account as a matter of policy. It was therefore not an irrelevant consideration: particular (c) must also be rejected.

4. [61]

   Particular (d) complained that by applying the Attorney General’s rates, the Secretary failed to take into account “features of the proceedings that required particular expertise”. The mere fact of applying fixed rates could not have given rise to that problem: it was precisely the approach adopted by solicitor and counsel in specifying a set of rates which they would charge. In effect, the complaint was that they were entitled to charge more. So they were; but unless the plaintiff was entitled to be indemnified for whatever his lawyers charged, that fact does not demonstrate that the Secretary’s decision was unreasonable.

5. [62]

   Nor is it correct to say that the Secretary did not consider the level of expertise required. As appears to have been the thrust of particular (f), the Secretary determined that the matter did not warrant a payment based on rates charged by senior counsel. Thus, when the Secretary did take account of the level of expertise required, that too was said to be an error. The straightforward point is that the level of expertise involved was not an irrelevant consideration, but a matter which the Secretary was permitted to take into account, and did so, as considered appropriate. Those decisions cannot be challenged as unlawful. Particular (d) must be rejected. (Particular (f) was rejected at [33] above.)

6. [63]

   Particular (e) complained that the application of the Attorney General’s rates resulted in a payment of costs which was “significantly lower” than the costs “to be paid” in a civil proceeding. That was, presumably, a reference to payments available on a party and party assessment. As has been explained, there was no unlawfulness on the part of the Secretary in not applying rates which might have been adopted in a determination of party and party costs in a civil proceeding. Indeed, as has been noted, s 4(2) expressly states that the payment not exceed the amount, as determined by the Secretary, of costs reasonably incurred, thus permitting (if not expecting) payments of lower amounts.

7. [64]

   Despite strong language in the plaintiff’s written submissions, the proposition that the Secretary acted legally unreasonably in determining that costs would be paid according to the scales applied by the Attorney General in instructing solicitors and briefing counsel to appear on behalf of the Government is without substance. Particular (e) must be rejected.

Consideration of statutory purpose

1. [65]

   It remains to consider particular (a), which alleged that the Secretary failed to comply with “the purpose” of the Costs Act. The underlying assumption was that the purpose of the Costs Act was to indemnify the holder of a costs certificate for the reasonable costs incurred in relation to the proceeding to which the certificate applied. No doubt, the purpose of the Act is to provide an element of indemnity in the circumstances in which a certificate is provided. However, it is no part of the statutory scheme to provide a full indemnity. Nor did the plaintiff seek a full indemnity. Nor was the purpose of s 4 to provide a full indemnity for costs “reasonably incurred”: had that been intended, the power would have been conferred in terms which did not distinguish between determination of the “maximum amount”, being the costs reasonably incurred, and the amount which might be provided at the discretion of the Secretary. Particular (a) must be rejected.

Conclusions

1. [66]

   The grounds relied on by the plaintiff were not maintainable. Accordingly the amended summons must be dismissed. Costs will follow the event.

Orders

1. [67]

   The Court makes the following orders:

   1. (1)

      Grant the plaintiff an extension of time to 25 October 2024 to file the summons commencing this proceeding.

   2. (2)

      Dismiss the amended summons.

   3. (3)

      Order the plaintiff to pay the State’s costs of the proceedings in this Court.