As a costs lawyer in Western Australia, I often come across situations where clients wish to appeal costs orders.
While the right to appeal is an essential part of the legal process, it is important to understand the principles that govern costs appeals.
In this blog post, I explore these principles, drawing from the case of Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96.
The Discretionary Nature of Costs Orders
Costs orders involve the exercise of discretion by the court. This means that the judge has the authority to decide on the appropriate costs order based on the specific circumstances of the case.
Consequently, the principles applicable to appeals against discretionary decisions also apply to costs appeals.
Limits of Appellate Intervention
An appellate court is not entitled to substitute its own decision for the decision under appeal simply because it would have reached a different conclusion, or because it considers that a different outcome would be more just and equitable.
Instead, an appellate court must be satisfied that the order made stands outside the limits of a sound discretionary judgment before intervening.
Establishing Errors in the Primary Decision
To demonstrate that a costs order is outside the limits of a sound discretionary judgment, an appellant must establish either an express error or demonstrate that an error can be inferred.
An express error occurs when the primary judge:
1. Acted upon a wrong principle,
2. Mistook the facts,
3. Took into account an irrelevant consideration, or
4. Failed to take into account a relevant consideration.
An error may be inferred if the order under appeal is shown to be unreasonable or plainly unjust.