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Similar to Clause 3(2), Clause 11 Subclause (2) increases the costs limit in the magistrates court from $5,000 (set in 1981) to $15,000; again, costs may only exceed that amount if they are to be assessed by an official of the court or have been agreed by the prosecution and the defence.
Clause 16 of the Bill provides that liability for costs of a legally-aided defendant should not exceed his contribution paid or payable to the Director of Legal Aid towards the costs of his defence.
Wasted Costs
At present, there are no provisions governing wasted costs in criminal cases, so that where loss or expense is caused to any person by the unjustifiable conduct of criminal litigation by either side's lawyers, there is no remedy. That cannot possibly be right. Clause 18 of the Bill arms the courts with an effective remedy for the protection of the injured. That clause enables the court to order the legal or other representative to pay the whole or part of wasted costs. Clause 2 of the Bill defines wasted costs to mean any costs incurred by a party to criminal proceedings as a result of an improper, unreasonable or negligent act or omission on the part of his legal or other representative, or where, in the light of any such act or omission occurring after such costs had been incurred, it is unreasonable to expect that party to pay. I should make clear that the court's power to make a wasted costs order would extend to the prosecution as well as to the defence.
In order to allay the concern that the interests of the legal or other representatives may not be adequately protected if the court intends to order wasted costs against them, Clause 18 Subclause (2) provides that no wasted costs order shall be made unless the legal or other representatives concerned have been given a reasonable opportunity to appear before the court to show cause why the order should not be made. It is intended that rules will be made under Clause 22 of the Bill to make detailed provision for this safeguard.
Appeals
The Bill also provides for avenues for appeals against costs orders made by the court. Where any of the parties to the proceedings is not satisfied with an order for costs, he or she can appeal against that order under Clause 19, or apply under Clause 20 for those costs to be assessed by the court, or apply under Clause 21 for a review of that assessment.