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Costs Orders (Vic)

There is a range of legislation that governs court costs in Victoria. A court has discretion to make a costs order based on the facts of the case and legislation that applies. This article outlines how courts make costs orders according to legislation in Victoria.

Magistrates Court

The Magistrates Court Act 1989 gives the court discretion to award all costs in all proceedings. The court can determine by whom, to whom and how much costs should be paid. The magistrate may take into account any unreasonable act or omission by, or on behalf of, any party in a case that prolonged the proceeding. However, it must give that party an opportunity to explain the act or omission before awarding costs against them. If a costs order is made against a police officer or police prosecutor, the order is made against the Chief Commissioner of Police.

The costs awarded may not cover all legal fees incurred by a party.

The court can order that the costs of, and incidental to, a proceeding be assessed, settled, taxed or reviewed by the Costs Court.

Criminal courts

The County Court Act 1958 and the Supreme Court Act 1986 give those courts discretion to award all costs in all proceedings. The courts can determine by whom, to whom and how much costs should be paid, but costs are generally not awarded in either court. The courts can refer the costs to be settled in the Costs Court.

The Criminal Procedure Act 2009 states a court cannot make a costs order against a person without giving the person a reasonable opportunity to be heard. The Act grants power to the Supreme and County courts to award costs against either party, whether the defence or the prosecution, or against a party’s lawyer or their law practice.

Costs orders against a lawyer

The Criminal Procedure Act 2009 allows the Magistrates, County or Supreme court to make a costs order against a lawyer in a criminal proceeding where the lawyer directly or indirectly causes costs to be:

  • incurred improperly or without reasonable cause; or
  • wasted by undue delay or negligence; or
  • by any other misconduct or default.

This can occur when the lawyer delays a proceeding because the lawyer fails to, for example:

  • attend court;
  • file, lodge or deliver required documents;
  • be prepared with any proper evidence or account.

It can order that the lawyer:

  • return all or some of the money paid to them by the client; or
  • pay all costs the client has been ordered to pay to a party; or
  • pay all or any costs payable by any party other than the client.

Costs orders on appeal

The Criminal Procedure Act 2009 allows the County Court to make a costs order relating to an appeal. The court can order the appellant to pay all or some of the other party’s costs when:

  • an appeal is made against a conviction and sentence or sentence alone, and the court is satisfied the appeal was vexatious or frivolous or an abuse of process;
  • an appeal is brought but not prosecuted;
  • the court has no jurisdiction to handle the appeal;
  • the appellant fails to appear or abandons an appeal

The Appeal Costs Act 1998 allows a party to apply for an indemnity certificate, which permits the party to apply to the Appeal Costs Board for payment of costs when a criminal or civil matter is appealed or a trial is discontinued. Indemnity costs are all costs incurred by a party, including fees, charges, expenses and lost remuneration.

Costs Court

The Costs Court sits within the trial division of the Supreme Court. It has jurisdiction to hear and determine the assessment, settling, taxing or reviewing of costs in proceedings in the Supreme, County and Magistrates courts, as well as the Victorian Civil and Administrative Tribunal. It is made up of judges and registrars. The judges review the work performed by a lawyer, consider whether the actions of the other party prolonged the proceedings, and the work of the police and prosecutor.

Assessing costs

The costs incurred between parties in litigation (party-party costs) are governed by rules found in legislation. This includes the Supreme Court (General Civil Procedure) Rules 2015, County Court Civil Procedure Rules 2018, and Magistrates Court General Civil Procedure Rules 2020.

The costs incurred between a lawyer and their client (solicitor-client costs) usually involve a costs agreement. Common methods of charging for legal work include charging according to time, charging a fixed or flat fee, and charging by reference to a scale of costs set out by a Practitioner Remuneration Order under the Legal Profession Uniform Law Application Act 2014.

For advice or representation in any legal matter, please contact Armstrong Legal.

Sally Crosswell

This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

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