What are costs?
- In Victoria, individuals who are facing criminal proceedings, can by order of the Magistrate/Judge claim their incurred legal costs.
- In the Criminal Procedure Act 2009, s400 states that ‘the court must not make an order awarding costs against a person without giving that person a reasonable opportunity to be heard’.
- For example, the Magistrates’ Court, pursuant to s131 of the Magistrates’ Court Act (MCA) 1989 and s401 of the Criminal Procedure Act (CPA) 2009 it is explained that:
- (1) The costs of, and incidental to, all proceedings in the Court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid.
- The Magistrates’ discretion to award costs means that an individual may not have their legal fees fully awarded, rather it is evaluated through both the facts of the case and the actions of both parties.
- However, pursuant to ss2C of the MCA and ss2B of the CPA, the Court must not make an order awarding costs “where any unreasonable act or omission by, or on behalf of, that party that the Court is satisfied resulted in the prolonging of the proceeding without giving that party a reasonable opportunity to be heard.”
Who pays for the costs?
- The majority of our Criminal matters in the Magistrates’ Court are prosecuted by Victoria Police.
- In ss2C of the MCA, if the court determines to award costs against the informant who is a police officer, the order must be made against the Chief Commissioner of the Police.
“I am a respondent in a Family Violence Intervention Order (FVIO) can I be awarded costs?” - Typically, in a FVIO pursuant to s154 of the Family Violence Protection Act 2008, each party to a proceeding must bear their own costs.
- However, an exception can be made under ss3(a) and (b) of the Act. Only if the Court is satisfied that there are exceptional circumstances, or that the making of the FVIO was vexatious frivolous or made in bad faith.
This is why it is important that you seek legal advice from an experienced criminal defence lawyer. Here at Jay & Co, many of our clients have been awarded costs in the Magistrates’ Court.
Do not hesitate to contact us if you require legal representation.
