Director of Public Prosecutions (NSW) v Peapell

1. [1]

   LEEMING JA: I agree with Ball JA, for the reasons he gives, that the Director's summons should be dismissed, and that she should be ordered to pay Mr Peapell’s costs in this Court in the amount of $140. The Director has achieved some success in relation to her submissions upon the limitations of the power of the Local Court and the District Court to order costs, including as to the expenses incurred by an unrepresented litigant which cannot be included in a costs order; that will clarify the position in future cases, which was the reason for the Director’s application to this Court. The dismissal of the summons is a consequence of none of the points on which the Director has succeeded being raised in the District Court, although there was ample opportunity to do so. As Ball JA explains, there is some doubt as to the nature of the some of the costs incurred, leading to the possibility that the discretion may not have been correctly exercised by the District Court in favour of Mr Peapell in relation to some aspects of his claim. However, the Director’s failure to raise these points in the court below warrants the refusal of relief on discretionary grounds.

2. [2]

   I add one thing by way of emphasis. The District Court was exercising two distinct powers: the power to make the costs order the Local Court was empowered to make, and the power of the District Court to make a costs order following the determination of the appeal. The powers were similar, and in particular the preconditions in s 214 of the Criminal Procedure Act 1986 (NSW) applicable to the former resemble those in s 70 of the Crimes (Appeal and Review) Act 2001 (NSW) applicable to the latter. Nonetheless, the powers are distinct, and the former but not the latter must be quantified and is enforceable as a fine (see ss 213(5) and 217 of the Criminal Procedure Act). It is open to the District Court to make a single order which reflects the combination of both powers, although it is also open for both powers to be exercised separately, resulting in separate orders for the costs in each of the Local Court and the District Court, which is the usual course adopted by appellate courts.

3. [3]

   McHUGH JA: I agree with Ball JA, and with the additional observations of Leeming JA.

4. [4]

   BALL JA: By a summons filed on 19 March 2025, the Director of Public Prosecutions (DPP) seeks judicial review of a decision of the District Court (Judge Wass SC) on 20 December 2024 the effect of which was to require the Crown to pay the first respondent, Mr Aaron Peapell, costs in the amount of $11,200 following Mr Peapell’s successful appeal against his conviction in the Local Court of an offence of unlawfully entering into inclosed lands contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW). Judicial review is only available for jurisdictional error: see District Court Act 1973 (NSW), s 176. For reasons which will become apparent, if the application is successful the DPP seeks an order that the matter be remitted to the District Court to be dealt with according to law.

Background

1. [5]

   Mr Peapell was charged with the offence on 4 February 2022. It was alleged that shortly after midnight on 9 January 2022, Mr Peapell had attempted to climb onto the complainant’s balcony. The complainant pushed him away and called the police. The complainant told the police that she had seen Mr Peapell on several occasions previously (he then lived nearby), that he appeared to be intoxicated and that she had seen him again shortly afterwards at a bus stop outside her apartment complex. The police searched the area, but found no one. The officer in charge made some attempts to obtain CCTV footage of the incident, but was unsuccessful and took no further steps in that regard.

2. [6]

   On 15 January 2022, the complainant observed Mr Peapell near her residence and reported him to the police as the person who had unlawfully entered her premises. The police arrested Mr Peapell on 4 February 2022. He participated in a record of interview. He said that he was at home that night working on the internet.

3. [7]

   The matter was listed for hearing on 9 June 2022. However, Mr Peapell did not appear at that time. He was convicted in his absence and fined $500. On 27 June 2022, Mr Peapell made an application to have the conviction annulled. That application failed in the Local Court, but was successful in the District Court on 13 October 2022.

4. [8]

   The matter was reheard in the Local Court on 15 June 2023, by which time Mr Peapell had moved to Perth. He represented himself and gave evidence at the hearing. He denied the offending. He produced evidence of his Google and YouTube chat logs from his computer both immediately before and immediately after the alleged offending. The logs disclosed that Mr Peapell finished messaging at 9.52 pm and watched a YouTube video up until at least about 11.52 pm and commenced viewing another video at 1.04 am. Mr Peapell submitted that the nature of his correspondence indicated that he was not intoxicated. Mr Peapell also submitted that despite his requests at the time he was interviewed, the police had not obtained complete CCTV footage or conducted a search for the green shirt and black pants the complainant said he was wearing. The evidence produced by Mr Peapell had previously been offered to the police, but was initially declined. It was ultimately provided to the police on 7 February 2022.

5. [9]

   Mr Peapell was convicted in the Local Court and fined $330. Magistrate Moody accepted that the complainant was a “credible witness” and was “very clear that she knew who he was”. The Magistrate also thought that the computer logs indicated that there was sufficient time between when Mr Peapell ceased viewing the first YouTube video at about 11.52 pm and viewing another at 1.04 am to have committed the offence.

6. [10]

   Mr Peapell appealed to the District Court pursuant to s 13(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). Pursuant to a protocol that then operated between the police and the DPP, the DPP took over the conduct of the appeal exercising her rights under s 9(1)(b) of the Director of Public Prosecutions Act 1986 (NSW).

7. [11]

   Again, Mr Peapell represented himself in the appeal. On 6 August 2024, Judge Wass allowed the appeal and quashed the conviction. At the hearing of the appeal on that date, the prosecutor accepted that it was fair to say that there was a reasonable possibility that Mr Peapell’s denials of the offence were true.

8. [12]

   After determining the appeal, Judge Wass sought submissions on costs. Her Honour delivered judgment on that question on 20 December 2024. Relevantly, her Honour ordered that “The respondent is to pay the applicant costs in the sum of $11,200”.

Relevant legislation

1. [13]

   Section 212 of the Criminal Procedure Act 1986 (NSW) (CP Act) provides:

2. [14]

   Section 213 of the CP Act relevantly provides:

3. [15]

   The phrase “professional costs” is defined in s 211 of the CP Act to mean “costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court”.

4. [16]

   Section 214(1) of the CP Act provides:

5. [17]

   An order for the payment of costs under the CP Act is enforceable as a fine: see s 217.

6. [18]

   Section 28(2) of the CAR Act provides that “In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings”. It follows that Judge Wass had power to make orders in relation to the costs of the Local Court proceedings in accordance with s 212 of the CP Act. In addition, in relation to the costs of the appeal, s 28(3) of the CAR Act provides:

The primary judgment

1. [19]

   The primary judge referred to the provisions of both the CP Act (ss 212, 213 and 214) and the CAR Act (s 70). The primary judge did not distinguish between the costs of the prosecution and the costs of the appeal. Her principal focus was on whether the conditions set out in s 214 of the CP Act and s 70 of the CAR Act had been satisfied. Having concluded that they had been, her Honour turned to the question whether or not any costs were recoverable. On that question, her Honour said this:

2. [20]

   Her Honour also considered the question whether a certificate should be granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW). Her Honour concluded that one should be. No issue is taken in relation to that part of the judgment.

Grounds for review

1. [21]

   No challenge is made to the conclusions of the primary judge that the conditions contained in s 214 of the CP Act and s 70 of the CAR Act were satisfied. However, the DPP alleges that the primary judge had no jurisdiction to award the costs that she did under either Act. The jurisdiction under the CP Act was limited to an award of “professional costs” as defined, which did not include the disbursements claimed by Mr Peapell. Although the same qualification is not contained in s 28(3) of the CAR Act, that Act has been interpreted as adopting the general principles in relation to costs as stated by the High Court in Cachia v Hanes (1994) 179 CLR 403: [1994] HCA 14 (Cachia). The DPP submits that, in accordance with those principles, the costs claimed by Mr Peapell were not recoverable.

Consideration

1. [22]

   The general principle is that an award of costs is made to compensate a litigant for the actual costs incurred by the litigant in conducting the litigation. Costs are not awarded to compensate the litigant for any other costs or loss the litigant might suffer in connection with the litigation. As a result, a self-represented litigant will not be entitled by an award of costs to recover compensation for time spent in connection with the litigation or costs incurred because of the litigation. As Mason CJ, Brennan, Deane, Dawson and McHugh JJ explained in Cachia at 414, a case in which a self-represented litigant in proceedings in the Supreme Court of New South Wales had sought to recover compensation for the loss of his time spent in the preparation and conduct of his case and for travel expenses associated with the preparation and conduct of his case:

2. [23]

   Accordingly, the self-represented litigant was not entitled to recover compensation for his time spent in conducting the case. Nor in the circumstances of the case was he entitled to claim his travel expenses:

3. [24]

   Section 213 of the CP Act gives a court power to order a prosecutor to pay “costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) …” (substituting the definition for the defined term). This Court (Basten JA, with whom Bathurst CJ and Beazley P agreed) held in Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 (Wang) at [43] that s 215 of the CP Act, which permits the court to order an accused person to pay “such professional costs as the court considers just and reasonable”, places a jurisdictional constraint on the types of costs that can be awarded against an accused person under the CP Act:

4. [25]

   There is a question of what is meant by the phrase “costs … relating to professional expenses and disbursements”. In circumstances where the phrase defines a term (“professional costs”) which itself uses the word “professional”, the word “professional” in the definition must be read distributively. What can be recovered are costs relating to professional expenses and costs relating to professional disbursements. The draftsperson could not have intended “professional costs” to include any type of disbursement whether professional or not.

5. [26]

   It seems plain that a professional expense is an expense (that is, a fee) charged by a professional for the delivery of services in respect of the proceedings before the Court. That conclusion is consistent with the decision in Wang. In that case, Basten JA (with whom Bathurst CJ and Beazley P agreed) said at [21] that the defined term (“professional costs”) “must exclude costs which would be incurred by a non-professional person, such as a litigant acting for himself or herself”. His Honour thought the position was the same even if the self-represented litigant was a qualified lawyer on the basis that “the plural ‘expenses’ is not used in ordinary parlance to refer to matters other than money”, with the result that it is not possible to say that such a litigant who spends time on the litigation can be said to have incurred any expenses in relation to it.

6. [27]

   What is meant by “professional disbursements” is not as clear. A narrow reading is that it only refers to disbursements incurred by a professional. But there is a difficulty with that construction. It is apparent from the definition of “professional costs” that professional disbursements include witness fees. But it cannot matter whether the witness fees are paid by the professional or are paid directly by the client (the accused person). And if that is correct, it cannot matter whether the accused person is represented or not. More generally, it is difficult to see why the recoverability of a disbursement should depend on who pays it. A preferable interpretation of the expression in this context is that it refers to the nature of the disbursement. Read in that way, a professional disbursement is one that would have been incurred if a professional had been acting for the accused person and that would have been recoverable on a party/party basis. On that interpretation, the limitation in respect of “professional costs” closely reflects the principles ordinarily applicable to the recovery of costs as explained in Cachia. The only difference is that the incorrect application of those principles amounts to a jurisdictional error.

7. [28]

   Section 28(3) of the CAR Act confers a general power on the District Court to award costs, subject to satisfaction of the requirements set out in s 70. “Costs” in this context has been taken to mean costs in the sense explained in Cachia: see Ryde City Council v Pedras [2009] NSWCCA 248 (Pedras). In that case, Giles JA (Buddin J agreeing) stated (at [28]):

8. [29]

   One important difference between s 213 of the CP Act and s 28(3) of the CAR Act is that it is unclear whether a failure to award costs under s 28(3) of the CAR Act in accordance with the principles stated in Cachia amounts to a jurisdictional error. Section 28(3) gives the District Court a broad discretion in relation to costs in relation to the hearing before it subject only to s 70. There is nothing in s 28(3) to suggest that a legal error in relation to the principles applicable to the exercise of that discretion was intended to be a jurisdictional one. Plainly the reasoning of Basten JA in Wang at [43] has no application. Moreover, in the normal course of events, where a lawyer is acting for the accused person, the court may simply make an order that the prosecutor pay the accused person’s costs (or some proportion of them) of the hearing before it, leaving those costs to be assessed in accordance with Part 7 of the Legal Profession Uniform Law Application Act 2014 (NSW). The question of jurisdictional error would not arise. It is unclear why a different result should follow if the District Court makes an order for costs in favour of a self-represented litigant, at least if those costs are of a general nature that a self-represented litigant is entitled to recover.

9. [30]

   There is a question whether the discretion conferred by s 28(3) of the CAR Act is limited to the costs in the District Court or whether it also applies to a re‑exercise by the District Court of the costs discretion conferred on the Local Court. The better view seems to be that s 28(3) deals with the costs in the District Court and s 28(2) deals with the costs in the Local Court by giving the District Court the same power in relation to those costs as the Local Court has. If that is correct, the District Court would make a jurisdictional error if it made a costs order in relation to the costs in the Local Court that the Local Court could not have made. However, these issues were not addressed by the parties on this appeal, and it would not be appropriate for this Court to express a final view absent submissions on the point. For reasons which will become apparent, this is not an appropriate case for the Court to invite further submissions on the issue.

10. [31]

    There is also a question of what costs are recoverable as professional disbursements under s 213 of the CP Act or in accordance with the general principles relating to the recovery of costs as they apply to s 28(3) of the CAR Act.

11. [32]

    Three types of cost are in issue in this case. They are printing costs, accommodation costs and travel costs.

12. [33]

    In the normal course of events, printing costs would be recoverable. They are an actual disbursement or cost incurred in connection with the litigation and would have been recoverable by a solicitor if one had been acting for Mr Peapell.

13. [34]

    Accommodation and travel costs can be taken together. The Court was taken to several authorities that suggest that travel costs are not recoverable, including Murphy v Arnoldus-Lewis [2009] NSWCA 142; Indjic v Stojanovic [2020] NSWSC 470 at [76]-[77] (Hallen J) and Cmunt v Commissioner of Police NSW [2019] NSWLEC 33 (Pepper J). See also Anderson v Canaccord Genuity Financial Ltd (No 2) (2024) 115 NSWLR 1; [2024] NSWCA 161 at [131], where this Court after referring to the decision of Samuels JA (with whom Clarke JA agreed) in Cachia v Isaacs [1989] NSWCA 31 said:

14. [35]

    Plainly, it states the position too broadly to say that travel and accommodation costs can never be recovered. Witness costs, which may include travel and accommodation costs, are recoverable. There is no reason why a different principle should apply where the witness is the accused person, even if the accused person is self-represented.

15. [36]

    In other cases, travel and accommodation costs may be recoverable depending on the reasons for the travel. However, it seems to be accepted that expenses incurred in travelling to and from court are not recoverable. Expenses of that type do not fall within the definition of “professional costs” for the purpose of s 213 of the CP Act because they are not expenses that a professional would be entitled to recover. They are not properly regarded as “costs” for the purposes of s 28(3) of the CAR Act. However, in the case of s 28(3) of the CAR Act there remains a question whether an award of travel costs would amount to a jurisdictional error. That is particularly so where in Cachia, the Court simply said that it was “within the discretion of the Taxing Master to disallow any travelling expenses as an out-of-pocket expense incurred for that purpose”. The Court did not suggest that it would have been a legal error, let alone a jurisdictional one, if the Taxing Master had allowed costs of that type.

16. [37]

    The primary judge proceeded on the basis that it was open to her to award any expenses incurred by Mr Peapell “during the proceedings”. The Crown did not suggest that that was incorrect. Most of its submissions in relation to the quantification of costs were focussed on Mr Peapell’s claim for his time in preparing his defence and in preparing for the appeal, which were not allowed. In relation to travel and accommodation costs, the DPP in her written submissions said this:

17. [38]

    However, at the hearing, Mr Lovely, who appeared for the DPP, accepted that the Crown did not dispute that Mr Peapell had “in fact incurred the costs that he’s set out”. Her Honour proceeded on that basis.

18. [39]

    There is no material before this Court which sheds light on what the accommodation and travel costs related to or whether they related to the prosecution or the appeal. Consequently, there is no basis on which this Court could determine whether the expenses are recoverable under s 213 of the CP Act or s 28(3) of the CAR Act. All that can be said is that it seems likely that the printing costs of $100 are recoverable and that some of the travel and accommodation costs may be recoverable as witness fees. For those reasons, if the application succeeded the matter would have to be sent back to the District Court for a further hearing.

19. [40]

    The DPP accepts that the Court has a discretion to refuse the relief claimed. In my opinion, that discretion should be exercised in Mr Peapell’s favour. Mr Peapell should not be put to the costs and inconvenience of a further hearing when the Crown accepted before the primary judge that the amounts in issue were in principle recoverable, where the amount in issue is no more than $11,200 and most likely less than that, and where there are unresolved questions concerning whether her Honour made a jurisdictional error in awarding the costs that she did.

20. [41]

    That leaves the question of costs in this Court. During the course of argument, Mr Peapell indicated that he had incurred costs of $140 in producing for the court a bundle of authorities. In accordance with the principles set out earlier, those costs are recoverable. It was not suggested that Mr Peapell had incurred other costs that were recoverable in accordance with those principles. The Court did not have before it evidence of the actual costs of producing the bundles. However, it did have the bundles and $140 appears to be a reasonable allowance for the costs of their production. Consequently, I would propose that the Court order that the DPP pay Mr Peapell the sum of $140 in respect of his costs.

21. [42]

    The orders I therefore propose are:

    1. (1)

       The summons filed on 19 March 2025 be dismissed.

    2. (2)

       The applicant pay the first respondent’s costs assessed in the amount of $140.