EFG v Secretary, Department of Communities and Justice & Ors

2025/00124203

COSTS – the applicant was acquitted of three counts of sexual intercourse without consent and one count of attempted intercourse without consent following a trial in the District Court – the applicant applied for, and was granted, a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) (Act), following which he sought costs in the order of $515,523.21 – the General Counsel of the respondent instead awarded $188,172.20 – this figure was reached through a two-stage process; the first of which being the determination of a maximum amount of $419,976.08 of costs “reasonably incurred” as determined by the General Counsel, and the second being the assessment of amounts to be allowed for those items in accordance with the Attorney General’s payment rates for solicitors and counsel – the applicant filed summons seeking judicial review on 25 October 2024 disputing the assessment on the basis that the decision to apply the Attorney General’s rates and award less the maximum amount was legally unreasonable – the primary judge held that the General Counsel was afforded a broad discretion by the Act to determine the amount to be awarded – the primary judge further found that the General Counsel was entitled to apply to the Attorney General’s rates even in circumstances where the applicant’s counsel charged, as so entitled, significantly more than those rates – whether the primary judge erred in construing the Act and its purpose – whether primary judge failed to determine legal standard of reasonableness in the respondent’s application of Attorney General’s rates – whether primary judge failed to find as unreasonable the exercise of discretion by the respondent.