Cost Law Commentary

Orders to Tax Interlocutory Costs Forthwith

The decision of Dale v Clayton Utz (No 3) [2013] VSC 593 is a Victorian Supreme Court decision considering the April 2013 amendment to the Rules preventing a party taxing an interlocutory cost order prior to the conclusion of the proceedings, without an order allowing taxation forthwith.  Justice Hollingworth reviewed the principle Federal Court decisions.. She summarised the circumstances in which court would make such orders as: (a) Because of the conduct of the unsuccessful party;

(b) Because of the likely delay before the final completion of the proceeding; and

(c) Because the interlocutory application involves a separate or discrete issue.

Her Honour found that there was likely to a very considerable delay before the trial, noting the interlocutory application alone had taken one year, and that there was a possibility of further delays in the proceedings arising from the fact that both parties were well known legal in legal circles , which may result in difficulties in finding a judge to hear the matter.  She also noted that the application attracted the third category, in that it dealt with a discrete issue, namely whether a particular senior counsel could represent the defendant.

The decision is a useful summary of the relevant principles to an order for costs to be taxed forthwith.

It is also worth noting another reference to the Civil Procedure Act 2010, and the need for parties and practitioners to have regard to their obligations.  Her Honour reflects that every conceivable point of fact or law appeared to have been taken by both sides, and expresses the hopes that the parties will adopt a different approach to the litigation in future.  Perhaps this is a case where the judicial officer case managing the matter will take heart from the Court of Appeal's comments in Yara v Oswal.