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Act No. 79
JUSTICES (COSTS) AMENDMENT BILL 1991 (No. 2)
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill a introduced into Parliament)
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Until recently, there has not been a presumption that costs should be awarded to
successful defendants in committal proceedings or in summary criminal proceedings
conducted under the Justices Act 1902. The decision of a majority of 3 of 5 Judges of
the High Court of Australia in Latoudis v. Casey [(1990) 170 C.L.R. 534] has now
given rise to such a presumption.
The object of this Bill is to amend that Act so as to restrict the awarding of costs to
successful defendants in committal proceedings or proceedings for offences dealt with
by Magistrates, or in appeals to the District Court against their decisions in any such
proceedings, to cases in which:
(a) the investigation into the alleged offence was conducted in an unreasonable or
improper manner, or
(b) the proceedings were initiated without reasonable cause or in bad faith or were
conducted by the prosecution m an improper manner: or
(c) the prosecution unreasonably failed to investigate (or to investigate properly)
any relevant matter of which it was aware or ought reasonably to have been
aware and which suggested either that the defendant might not be guilty or that,
for any other reason, the proceedings should not have been brought; or
(d) became of other exceptional circumstances relating to the conduct of the
proceedings by the prosecution, it is just and reasonable to award costs.
The proposed restriction will not apply to the awarding of costs in relation to
unsuccessful private prosecutions.
The Bill provides as a transitional measure that the proposed amendments do not
affect the awarding of costs to defendants in proceedings commenced before the
amendments commence or to appellants in appeals relating to any such proceedings.
2
Justices (Costs) Amendment 1991 (No. 2 )
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the commencement of the proposed Act.
Clause 3 gives effect to the Schedule of amendments.
Clause 4 makes the transitional measure referred to above.
Schedule 1 contains amendments to sections 41A, 81 and 125 of the Justices Act
1902 that have the effect described above.