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interlocutory Costs: exceptional,
special, or neither?
By Cameron Ford*
When r 63.18 of the Supreme Court Rules was introduced in 1988, no doubt it was the fond hope of the
Judges and the Rules Committee that costs arguments on interlocutory applications would decrease.
Instead, anecdotally at least, the opposite seems to have occurred. And not only is there argument over
who should have costs, but there is often a preliminary argument over what is the appropriate test for the
awarding of costs in interlocutory applications.
It is often argued by a party resisting
interlocutory costs that they can only
be awarded in “exceptional
circumstances”. Two senior junior
counsel argued this and related
questions recently for nearly an hour.
Hopefully there will be an authoritative
statement, even byway of obiter, by
the Court of Appeal in the not too
distant future which will put an end
to this type of costly costs argument.
The suggestion that exceptional
circumstances are required before an
order for interlocutory cost will be
made has its aetiology in the
decision of Martin J (as he then was)
in TTE Pty Ltd & Anor v Ken Day Pty
Ltd2. There, in words oft-quoted since,
his Honour said:
“...there must be something
exceptional
about
the
circumstances ofthe interlocutory
application under consideration to
lead the Court, in the exercise of
its discretion, to make an order as
to costs, taxation and payment”
Those words have been interpreted
and abbreviated since to mean that
costs will only be awarded where
there are exceptional circumstances.
It is respectfully submitted that this
interpretation is incorrect.
Four things may be said about his
Honour’s comments in TTE:
1. They did not referto “exceptional
circumstances”;
2. They were obiter;
3. If they did refer to “exceptional
circumstances”, practice has
changed significantly since 1990
to renderthem inapplicable today;
4. Such a requirement improperly
fetters the exercise ofthe Court’s
discretion.
Page 16 — 2/2005
1. Not "exceptional
circumstances"
It is respectfully suggested that when
his Honour used the words quoted
above, he did not mean that
exceptional circumstances had to be
shown before interlocutory costs
would be awarded. His Honour’s
exact words need to be closely
examined. He said there had to be
“something exceptional about the
circumstances”. That, it is submitted,
is quite different from saying there
needs
to
be
“exceptional
circumstances”.
To begin with,
“something
exceptional” is singular, whereas
“exceptional circumstances” is
plural. In other words, to satisfy the
former phrase, there need only be one
thing about the case that is
exceptional. To satisfy the latter
phrase, either everything need be
exceptional, or there need be a
preponderance of exceptional factors.
While it is true that the plural
“circumstances” is sometimes used
to referto one event or factor, in this
context a requirement that the re “are
exceptional circumstances” clearly
indicates that it is contemplated that
there be more than one factor.
Articulating the distinction in this way
can make it appear merely a
technical one and therefore artificial.
That is a common feature of
attempting to articulate the sense of
words or a phrase, rather than its
literal meaning. Here, the sense of
Martin J’s phrase is that there needs
to be some feature of the
circumstances that is unusual or out
ofthe ordinary, justifying an order for
costs. On the other hand, the sense
of the phrase “exceptional
circumstances” is that there needs
to be more than one feature, or the
circumstances generally need to be
exceptional.
There could be cases where there is
only one exceptional factor, but it is
so outstanding or extraordinary that
it
flavours
the
remaining
circumstances to bring them within
what lawyers understand to be
exceptional
circumstances.
Generally, however, it is submitted
that it will be much easier to satisfy
the requirement that there be
“something exceptional about the
circumstances” than that there be
“exceptional circumstances.”
Unfortunately, we have abbreviated
his Honour’s words to the latter
phrase, misrepresenting his
meaning.
Supporting that contention is his
Honour’s explanation of his
comments, immediately following
those quoted above. He said:
“Given the tenor of the Rules, it
would not be just to make
interlocutory orders for costs, or,
if made, to orderthat they may be
taxed earlierthan completion ofthe
proceedings, with a view to
punishing the unsuccessful party.
To do so may engender a
reluctance in parties to properly
ventilate their problems during the
pre-trial process. What is required
is an approach which seeks to
have a successful party
reimbursed the expense of
interlocutory proceedings which,
for example, would have been
unnecessary if the otherside had
* Cameron Ford is a
Senior Associate with
Cridlands Lawyers
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acted reasonably; or which are
unnecessarily burdensome; or
which are made at a time, such
as here, when that party has been
deprived ofthe value ofthe work
done in preparation of his case for
trial. In such instances, and the
list is not intended to be definitive
or complete, it may well be within
the Court’s discretion to exercise
the powerto override the principles
established by the Rules.
Costs in interlocutory matters no
longer follow success. No order as
to costs ought to be made against
the unsuccessful party, in the
usual run of cases, even if
contested, if the grounds of the
application or resistance, as the
case may be, are reasonable.
However, if such application or
resistance is without real merit, as
is often the case, the successful
party should not have to bear his
costs.”
To explain what he meant by
“something exceptional”, his Honour
did not give a list of factors to be read
conjunctively. The few matters he
referred to were done so disjunctively,
indicating that any one of those or
similar factors would suffice. And the
matters he did refer to would not,
without more, normally come within
the
phrase
“exceptional
circumstances”.
This can be tested against the
established meaning of that phrase.
In WurramarbavPassmore3, Mildren
J said:
“In R vKelly [1999] 2 All ER 13 at
20, Lord Bingham of Cornhill CJ
said
that
exceptional
circumstances means:
“out ofthe ordinary course, or
unusual, or special, or
uncommon. To be exceptional,
a circumstance need not be
unique, or unprecedented, or
very rare; but it cannot be one
that is regularly, or routinely or
normally encountered.”
In AWA v Independent News
Auckland Limited [1996] 2 NZLR
184 at 186 Hammond J said:
“As a matter of general
approach, it is usually construed
as meaning something like
“quite out ofthe ordinary”.”
party had failed to comply with orders
ofthe court.
Martin J said that there would be
something exceptional justifying a
costs order if there was no real merit
to the application or resistance, as
is often the case. Those very words
clearly indicate that he was not
intending to elevate the threshold for
a costs order to “exceptional
circumstances” as defined by Mildren
J above. That definition, well settled,
is that there must be circumstances
“quite out ofthe ordinary”. Something
that is “often the case” could hardly
be described as also being “quite out
ofthe ordinary”.
The Master adopts the same practice
in his court.
It is respectfully suggested that error
has followed where Martin J’s
comments have been abbreviated to
a phrase well-known to lawyers, but
which is something quite different
from that intended by his Honour.
2. Obiter
This is certainly how some judges
have understood his Honour. In
VivanetvPower4, Mildren J said:
In TTE, Martin J was dealing with an
application for taxation
of
interlocutory costs before the
conclusion ofthe proceeding under
r 63.04(3). The defendant had
consented to paying the plaintiff’s
costs
of the
interlocutory
applications.
“The discretion is unfettered, but
nevertheless must be exercised
judicially and generally speaking,
that means showing special
circumstances: see Milingimbi
Strictly speaking, therefore, his
Honour’s comments on orders for
costs under r 63.18 were obiter,
although of course deserving of
respect.
Educational and Cultural
Association Incorporated v Davis
and The Museums and Art
Galleries Board (1990) NTJ 923 at
3. Change in practice
928-929, per Kearney J; Re
Wilcox; ex parte Venture
Industries Pty Ltd and Others
(1996) 141 ALR 727 at 729; 734.
What special circumstances
existed here?”
“Special” circumstances are clearly
less unusual than “exceptional”
circumstances. In deliberately using
that phrase, it is suggested that
Mildren J was indicating that
something less than exceptional
circumstances need be shown;
something more along the lines of
that required by Martin J’s “something
exceptional
about
the
circumstances.”
That is the approach that Mildren J
has taken since. During the course
of argument on an application for
interlocutory costs in Renehan v
Leeuwin
Ocean
Adventure
Foundation Ltd & AnoP his Honour
stated that he was ofthe view that it
is not necessary to show exceptional
circumstances to obtain an order for
those costs. His Honour ordered
costs there principally because the
If Martin J is to be taken to have held
that exceptional circumstances are
required for interlocutory costs
orders, it is submitted that the
practice since 1990 has so changed
as to remove the basis for that
requirement.
One reason his Honourgave forthe
radical departure in the rules was to
encourage parties to communicate,
and to discourage unnecessary
interlocutory applications. Those
comments, and the change in the
rules, were made on a very different
backdrop of court practice than exists
today, in the late 1980s, the new­
fangled concept of case flow
management was only in its infancy.
At that time, the interlocutory list
before the Master would routinely run
to three to four pages, and the
Judge’s list would rarely be less than
two pages. There was effectively no
other method of obtaining orders on
practice and procedure than by
interlocutory application. From
memory, the majority of those
applications were for routine orders
for
particulars,
discovery,
interrogatories and the like.
continued page 18...
2/2005 — Page 17
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Interlocutory Costs: exceptional, special, or
neither? cont*..
After the appointment of Martin J in
1988, Status Assessment Meetings
(SAMs) were introduced where
lawyers were required to do the then
unthinkable and explain to a judge
why no steps had been taken in a
matter for, sometimes, three to five
years. In time, those SAMs
developed into the directions hearings
of today, directly contributing to the
decline in interlocutory applications,
especially for routine matters.
Today, an interlocutory application is
the exception rather than the rule.
Because of relatively effective case
management practices, most ofthe
ordinary interlocutory matters are
dealt with in directions hearings.
Practitioners are forced to
communicate, at least in the
directions hearing, if not at other
times. Interlocutory applications are
not
brought with
anything
approaching the frequency or
peremptoriness of the past, nor
(generally) for run-of-the-mill orders.
The relevance to this topic is this: if
the reason for requiring exceptional
circumstances before an order for
interlocutory costs is made is to
encourage communication and
discourage unnecessary applications,
that reason has been substantially
removed since 1990. Case
management by the Court has very
effectively reduced the number of
interlocutory applications, and while,
no doubt, practitioners could always
communicate betterwith each other,
there is not the level of unmeritorious,
unnecessary or merely routine
applications there were at that time.
Thus, if Martin J did in fact hold that
exceptional circumstances were
necessary in 1990 to ground an
application for costs in interlocutory
applications, the reason for so holding
does not pertain in 2005.
4. Fettering the Court's
discretion
The rules give to the Court a broad,
unfettered discretion on the question
of costs. Rule 63.18 simply says
that “each party shall bear his own
Page 18 — 2/2005
costs of an interlocutory or other
application in a proceeding ... unless
the Court otherwise orders.”
If authority were needed for that
proposition, it can be found in the
decision of Asche CJ in Benton v
Noye6, on the effect of the words
“unless the Court otherwise orders.”
(See also Smith vReynolds7).
In Oshlack v Richmond River
Council8, Gaudron and Gummow
said:
“The provisions of s 69 ofthe Court
Act which confer upon the court
the discretion exercised by the
primary judge attract the
application of the general
proposition that it is inappropriate
to read a provision conferring
jurisdiction or granting powers to
a court by making conditions or
imposing limitations which are not
found in the words used. The
necessity for the exercise of the
jurisdiction or power by a court
favours a liberal construction.
Considerations which might limit
the construction of such a grant
to some different body do not
apply.” (references omitted)
As Martin (BR) CJ said recently in R
v Day9 in relation to a different
provision, “[tjhe use of words such
as ‘exceptional’ or ‘special’ is not
unusual and if the Legislature had
intended to impose such a stricter
test it would have said so.”
And in relation to this particular rule,
his Honour said in Drover v Northern
Territory ofAustralia10, said:
“Order 63.18 does not in its terms
require that a court be satisfied
that there is something exceptional
about the circumstances of an
interlocutory application before it
is appropriate to order costs on
the application. This was a view
expressed by Martin J in TTE v
Ken Day. It is unnecessary for me
to determine whether I agree with
that view.”
His Honour went on to hold that in
that case there were exceptional
circumstances, however his
reservation highlights the point made
here, that there is no requirement of
exceptional circumstances in the rule
when it would have been a simple
matter for the Judges to have said
so when formulating the rule.
While it is not appropriate to read
words into provisions conferring
power or jurisdiction, it is permissible
for an appellate court to give guidance
as to the exercise of the power or
discretion.
In Norbis v Norbis11, Mason CJ and
Deane J said:
“It has sometimes been said by
judges of high authority that a
broad discretion left largely
unfettered by Parliament cannot be
fettered by the judicial enunciation
of guidance in the form of binding
rules governing the manner in
which the discretion is to be
exercised: see, for example, Mallet
(ALJR) at p 249; (ALR) at pp 195­
6 Evans v Bartlam [1937] AC 473
at 488-9; Gardnerv Jay (1885) 29
Ch D 50 at 58. However, it does
not follow that, because a
discretion is expressed in general
terms, Parliament intended that
the courts should refrain from
developing rules or guidelines
affecting its exercise. ... The
proposition referred to at the
beginning ofthis paragraph should
not be seen as inhibiting an
appellate court from giving
guidance, which falls short of
constituting a binding rule, as to
the manner in which the discretion
should be exercised.”
Mason CJ repeated some of those
comments in Latoudis v Casey12,
saying:
“But it does not follow that any
attempt to formulate a principle or
a guideline according to which the
discretion should be exercised
would constitute a fetter upon the
discretion not intended by the
legislature. Indeed, a refusal to
formulate a principle or guideline
can only lead to exercises of
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Interlocutory Costs: exceptional, special, or
neither? cont...
discretion which are seen to be
inconsistent, a result which would
not have been contemplated by the
legislature with any degree of
equanimity.”
However, there is a limit even to the
guidance, orthe use of that guidance.
Brennan J said in Norbis v Norbis13-.
“ It is one thing to say that
principles may be expressed to
guide the exercise of a discretion:
it is another thing to say that the
principles may harden into legal
rules which would confine the
discretion more narrowly than the
parliament intended. The width of
a statutory discretion
is
determined by the statute; it
cannot be narrowed by a legal rule
devised by the court to control its
exercise.”
Here, the word “exceptional” is not
necessary for the rule to operate; it
is perfectly workable without that
word. Importing that word into the
provision, or requiring exceptional
circumstances before the Court will
otherwise order, is not providing the
type of guidance envisioned by
Mason CJ and Deane J. Rather, it
crosses the border and has the
potential to harden into a legal rule
which would confine the discretion
more narrowly than the Judges
intended.
There is one caveat. It should be
noted that, in at least one area, the
High Court has imposed the
requirement
of
exceptional
circumstances where the inherent
power conferring the discretion is not
expressly fettered by any such
consideration. The Court has held that
an applicant for a stay of execution
of an orderwhich is the subject of an
application for special leave to the
High Court, must establish special
circumstances:
Bryant
v
Commonwealth Bank of Australia14;
TIO v Costa & Sortino15.
However, in Bryant and later cases,
Kirby J explained the exceptional
reasons behind the High Court’s
importing that requirement into the
exercise ofthe discretion. It is worth
noting, also, that the power being
exercised is part of the inherent
jurisdiction of the Court, and not
emanating from a rule or statute. It
is therefore subject to any limitations
which the Court is of the view are
inherently necessary to control the
Court’s processes.
It is respectfully submitted that to
require exceptional circumstances
before ordering costs on interlocutory
applications would be to do more
than provide guidance - it would be
to introduce a consideration into the
exercise of the discretion that was
not intended by the discretionconferring authority, and thereby
fetterthe exercise of that discretion.
This argument was put to Thomas J
in Iraklis Roussos Nominees Pty Ltd
& Anor v Romeso Pty Ltd & Ors16,
however her Honourwas not required
to rule on it as she found there were
exceptional circumstances in that
case.
What is the test?
It is significant that in Victoria, where
the rule is identical (63.20), there
appears never to have been any
suggestion that exceptional
circumstances are required. The rule
appears to have attracted very little
judicial comment. It seems that the
Court has always treated the matter
as one of general unfettered
discretion requiring little exposition.
Senior Master Mahoney of the
Supreme Court of Victoria, to whom
I am indebted, kindly responded to a
query about the Victorian application
ofthe Rule. He wrote that the rule is
treated as having the same effect as
where the court has not said anything
as to costs,17 in which case they
abide the event. In Re Edwards &
Son; ex parte Tomlins18, Higinbotham
J, with whom Williams and Holroyd
JJ agreed, said of costs:
“They will abide the event without
anything being said about them.
It may be as well to state that we
shall follow underthe new practice
the same rules as underthe old,
and that where costs are not
mentioned they will abide the
event.”
This meant that the winner of the
proceeding would be entitled to the
costs, whether or not successful in
the interlocutory application.
It was this practice that was changed
by the subject rule, so that where the
court was silent, each party bore their
own costs. The new rule means
nothing more than silence means no
order at all, and that the old practice
that costs abide the event has gone.
Senior Master Mahoney stated that
the view that special or extraordinary
circumstances were required for an
order to be made would not win
acceptance in that Court, and that
the judicial discretion is exercised
without any implied limitations.
Anecdotal evidence from those
practising in Victoria is that a victor
in an interlocutory application will, all
things being equal, obtain an order
for costs. The rule simply means that,
if the Court is silent, there is no order,
but the Court has powerto make an
order in appropriate circumstances.
In Victoria, while it may not be
automatic, success is one of those
circumstances.
This approach avoids the long costs
arguments with which we are
becoming familiar and which,
unfortunately, is a side-effect of
allowing costs to be awarded in
“particular”, “special” or “additional”
circumstances. Each of those
standards, lowerthan “exceptional”,
broadens the factors which can
influence the exercise of the
discretion, thereby inviting argument
in more cases.
To adopt the Victorian approach
would be to allow that clear success
by one party would be a strong factor
favouring granting that party costs.
Success would not, however, operate
to the exclusion of other factors and
the Court would be entitled to take
other matters into account.
continued page 20...
2/2005 — Page 19
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Interlocutory Costs: exceptional, special, or
neither? cont...
A different approach
There is a further possible approach.
Prior to the introduction of r 63.18,
costs were in the discretion of the
court, but a practice had developed
of the successful party having an
expectation of receiving its costs.
Perhaps a better way of stating this
is that the result of the application
was a - and perhaps the most significant factor in the exercise of
the discretion. Absent some
disentitling conduct, the successful
party usually got its costs.
Where there was such conduct
however, the court retained a
discretion to deprive the successful
party of its costs. In Oshtack,
McHugh J said19:
“The traditional exceptions to the
usual order as to costs focus on
the conduct ofthe successful party
which disentitles it to the beneficial
exercise of the discretion. In
Anglo-Cyprian Trade Agencies Ltd
v Paphos Wine Industries Ltd,
Devlin J formulated the relevant
principle as follows:
‘No doubt, the ordinary rule is
that, where a plaintiff has been
successful, he ought not to be
deprived of his costs, or, at any
rate, made to pay the costs of
the other side, unless he has
been guilty of some sort of
misconduct.”
“Misconduct” in this context
means misconduct relating to the
litigation, or the circumstances
leading up to the litigation. Thus,
the court may properly depart from
the usual order as to costs when
the successful party by its lax
conduct effectively invites the
litigation; unnecessarily protracts
the proceedings; succeeds on a
point not argued before a lower
court; prosecutes the matter
solely for the purpose of increasing
the costs recoverable; or obtains
relief which the unsuccessful party
had already offered in settlement
ofthe dispute.
Apart from anomalous examples
Page 20 — 2/2005
in the equity jurisdiction, there are
very few, if any, exceptions to the
usual order as to costs outside the
area of disentitling conduct.”
(references omitted).
Those comments describe the
circumstances in which the court will
depart from the normal rule. It could
be argued that they should apply to
whateverthe normal rule is, whether
it is that the successful party have
its costs, or that each party bears
its own costs.
Justice McHugh’s comments are
also remarkably similar to those of
Martin J in TTE giving examples of
conduct which would attract a costs
order. This is a further indication that
his Honourdid not intend to limit the
discretion only to circumstances
which were exceptional.
Rule 63.18 effectively moved the
starting point for the exercise ofthe
discretion. Instead of starting from
the position that, ceteris paribus, the
successful party has its costs, the
discretion is exercised from the
position that each party bears its own
costs.
Formerly, the starting point would be
to place in the evenly balanced
scales the factor of one party’s
success. That would tilt the scales
heavily in that party’s favour. Then the
unsuccessful party might attempt to
load its side ofthe scales.
Under this approach to the new rule,
the fact of success is not accorded
any more weight than any other factor,
and perhaps considerably less. It
would not be quite true to say that it
is removed from the equation all
together. On its own, it will not tip
the scales in favour ofthe successful
party, but it might be enough to
balance the scales and result in no
order for costs where the
unsuccessful party complained of, for
example, mild misconduct on the part
of the victor. The court might well
agree in such a case that the victor’s
conduct could have been better, but
hold that success on the application
balanced the mild misconduct. In
that sense, the factor of success
might still have some part to play.
All of this may be a long-winded way
of paraphrasing Mildren J, that
special circumstances are needed
before an order will be made for costs
on an interlocutory application. The
reason forgoing into greater detail is
to dispel any suggestion that
“special” is close to “exceptional”.
Special circumstances should be
understood in the sense described
by McHugh J in Oshtack. (See also
Mildren J in Bernd Matzat v Gove
Flying Club Incorporated & Ors20.)
Other adjectives to describe the
enlivening circumstances could be
“particular” or even “additional”.
“Particular” is generally interpreted
as being less unusual than
“exceptional”21.
If this approach were adopted, this
writer has a preference for the
qualitative-neutral word “additional”,
used by Mansfield J in CultivaustPty
Ltd v Grain Pool Pty Ltd22. There his
Honoursaid23:
“There is also consensus as to the
proper starting point to the
exercise of that discretion. It is
ordinarily the case that costs
should follow the event to
compensate the successful
litigant: Ruddock v Vardarlis
(2001) 115 FOR 229 at 235, [12]
per Black CJ and French J.
Generally, further, there will need
to
be
some
additional
circumstances which warrant
departure from ordering costs
simply on a party and party basis
and for ordering costs on an
indemnity basis: Colgate-
Palmolive Co v Cussons Pty Ltd
(1993) 46 FCR 225 at 232 - 233
per Sheppard J.”
His Honour was dealing with
indemnity costs, however the same
word could be used to describe the
different circumstances justifiying an
orderfor interlocutory costs. In other
words, there must simply be some
additional factors which would justify
such an order.
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Interlocutory Costs: exceptional, special, or
neither? cont...
Oshlack and Cultivaust were both
cases dealing with the costs ofthe
proceeding. Experience, if not
authority, suggests that the usual rule
is displaced more easily when
dealing with the costs of interlocutory
applications than of substantive
proceedings. While the enlivening
conduct might be ofthe same type,
generally it seems that a greater
degree of that conduct is required to
displace the usual order in
substantiave proceedings than in
interlocutory applications.
The test could simply be formulated
by saying that costs will be awarded
in interlocutory applications where in
all the circumstances it is just to do
so, or if there are additional
circumstances warranting an order.
Assistance is often gained by
examining cases where the
discretion has been exercised
previously. Care must be taken with
that approach here, however, as this
paper suggests that in many prior
cases too high a test has been
imposed. Nevertheless, the following
are some instances of costs being
awarded on interlocutory applications,
namely where the application was:
(a) for an interlocutory injunction
which failed:-
Taylor & Vincent v Diamand &
Zikos Developments Pty Ltd24;
NT ofA v Tops Services Pty Ltd25
(Martin CJ - and taxed);
JH Evins Industries (NT) Pty Ltd
v Diano Nominees Pty Ltd26]
Ballarat v Queens
Old
Grammarians’ Assoc Inc Ballarat
& Queens Anglican Grammar
School27 (where the rule is the
same);
Kennedy Taylor (Vic) Pty Ltd v
Baulderstone Hornibrook Pty Ltd
[2000] VSC 43 Pullicino v Harness
Racing Board of Victoria28]
Iraklis Roussos (supra)
(b) without real merit:-
Woodleigh Nominees Pty Ltd v
CBFC Leasing29]
Yow v Northern Territory
Gymnastic Assoc Inc30.
(c) discrete and significant in terms
of argument and time:IGA Distribution Pty Ltd v King
& Taylor Pty Ltd31]
(d) unnecessary or could have been
avoided:-
Lexcray Pty Ltd v Northern
Territory32
(e) final in its effect on an issue or as
to a party:Yow; Otter Gold NL vBarcon (NT)
Pty Ltd33
Those cases, however, provide an
imperfect guide to the awarding of
costs in interlocutory applications. As
many of them applied the higher
test of requiring exceptional
circumstances, there will be many
situations where costs should be
awarded in cases less exceptional.
Conclusion
Martin J’s comments in TTE have
been misapplied and the requirement
of exceptional circumstances before
granting costs in interlocutory
applications should be expressly
abandoned.
Instead, the Court may adopt one of
at least two approaches. The first,
and preferred, is that of Victoria, that
r 63.18 does no more than provide
that where the Court is silent there
will be no order as to costs. The
effect of this approach is that success
is a strong factor in exercising the
discretion.
Alternatively, the Court could continue
to adjectively constrain the exercise
of the discretion by such words as
“special”, “particular” or “additional”.
Of those, the latter is preferred as it
fetters least the exercise of the
discretion and does not impose any
qualitative limitation on the relevant
factors.
be hoped that the Court ofAppeal will
soon pronounce on the approach to
be taken and remove one more
obstacle to resolution of interlocutory
matters. ®
Endnotes
2
3
4
5
6
7
8
(1990) 2 NTLR 143 at 145
[2003] NTSC 121 at [28]-[29]
[2001] NTSC 66 at [15]
(unreported, 15 December2005)
(1988) 93 FLR 466; 63 NTR 1 at 3
[1989] VR 309 at 312
(1998) 193 CLR 72; (1998) 152 ALR
83 at [21]
9 [2004] NTCCA 2 at [30]
10 [2004] NTSC 29 at [29]
11 (1986)161 CLR 513 at 519; 65 ALR
12 at 15
12 (1990) 170 CLR 534
13 at 537
14 (1996) 134 ALR 460
15 (2002) 11 NTLR 212
16 [2004] NTSC 3
17 Williams, Civil Procedure 63.20.25
18 (1885) 11 VLR 304 at 311
19 at 97
20 [1998] NTSC 36
21 see R v Day, supra, at [25] & [30]
per Martin (BR) CJ, agreeing with
Mildren J in Duthie v Smith (1992)
83 NTR 21
22 [2004] FCA1568
23 supra at [12]
24 (1997) 6 NTLR 164 (CA)
25 [1994] NTSC 32
26 [1989] NTSC 4
27 [2001] VSC 457
28 [1999] VSC 533
29 [1996] NTSC 79
30 (1991) 1 NTLR 180
31 [2002] VSC 412
32 [2002] NTSC 63
33 (2000) 10 NTLR 189
If these options continue to cause
difficulty, or prolonged and avoidable
costs arguments, return could always
be made to the displaced rule that
costs follow the event. That is a
matterforthe Rules Committee.
Unless the rule is amended, it is to
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