Part 4.5 - Court Powers as to Costs

Question 1

65A Order to legal practitioner as to length and costs of trial (memo - length/costs/costs if party loses - at any time, can order memo to Court, other party or both)

Answer 1

(1) May order (a) preparation of memo as to (i) Estimated length of trial; (ii) Est. costs and disbursements; (iii) In the case of a memo to be given to a party, the est. costs that that party would have to pay to any other party if the party is unsuccessful at trial (b) Can order the party to give the memo to the Court, the other party or both.
(2) Order can be made at any time in a civil proceeding

Question 2

65B Order to LP as to length and costs of the proceeding (this relates to whole proceeding) - actual/est costs; costs if loses; length of proceeding

Answer 2

(1) court may make an order directing a LP acting for party to prepare and give to that party a memorandum setting out— (a) Actual costs / disbursements incurred re: proceeding
(b) Est. costs / disbursements re proceeding or any part of it (c) Est costs that party would have to pay any other party if that party is unsuccessful at trial
(d) Est. length of proceeding or any part of the proceeding
(2) can order at any time

Question 3

65C Other costs orders (wide) - (eg segmented costs, proportions costs, fix/cap costs)

Answer 3

(1) In addition to any other power a Court may have re: costs, a court may make any order as to costs it considers appropriate to further the overarching purpose
(2) For example:
● (a) Make different awards of costs in relation to different parts of a proceeding or up to or from a specified stage of the proceeding
● (b) Order that the parties bear costs as specified proportions of costs
● (c) Fix or cap recoverable costs in advance

(2A) In making an order to fix or cap recoverable costs in advance, court may consider following matters: (3) Also it can make the order (a) at any time in the proceeding and in (b) relation to whole of the proceeding or only certain aspects e.g. an interlocutory proceeding.
● (a) The timing of application
● (b) The complexity of factual/legal issues raised in the proceeding
● (c) Whether the party seeking the order claims damages or other form of financial compensation
● (d) Whether party seeking the order has a proper basis and is not frivolous or vexatious
● (e) undesirability of party seeking the order abandoning the proceeding if the order is not made
● (f) Whether there is a public interest element to the proceeding
● (g) The costs likely to be incurred by the parties
● (h) Whether the party’s been uncooperative or delayed proceeding
● (i) ability of the party seeking the order to pay costs
● (j) Whether significant number of members of public may be affected by the outcome of the proceeding
● (k) Whether the claim of the party seeking the order raises significant issues as to the interpretation and application of statutory provisions

Question 4

65D Court may revoke or vary order or direction (given by it under this Part)

Answer 4

65D Court may revoke or vary order or direction (given by it under this Part)

Question 5

65E Interaction with other powers of court (doesn’t limit them)

Answer 5

65E Interaction with other powers of court (doesn’t limit them)