Introduction
The District Court of Western Australia has developed a distinct practice regarding the timing of costs orders in interlocutory proceedings. Unlike the Supreme Court, which generally orders costs to be paid forthwith pursuant to Consolidated Practice Direction 4.7.1, the District Court maintains a "usual practice of ordering the payment of costs from interlocutory hearings to be payable 'in any event'": QBE Insurance (Australia) Ltd v Coffey [2015] WADC 110 (S) at [61]. This practice reflects important policy considerations regarding the efficient administration of justice and the fair allocation of litigation risks between parties.
The General Rule
As articulated by Davis DCJ in QBE Insurance v Coffey, the phrase "in any event" means that costs are to be paid at the conclusion of the proceedings, regardless of the ultimate outcome of the substantive matter. His Honour observed at [61] that "the practice in this court is not to make an order for payment of costs forthwith unless there is something out of the ordinary so as to warrant the making of such an order." This principle has been consistently applied in District Court decisions: see Dakin Farms Pty Ltd v Elite Grains Pty Ltd [2012] WADC 43 at [52] (Commissioner Gething); Herbertson v Morton [2013] WADC 7 (S) at [7] (Eaton DCJ).
Rationale for the "In Any Event" Rule
The policy justifications for ordering costs "in any event" rather than forthwith were comprehensively explained in QBE Insurance v Coffey at [62], drawing upon the Federal Court's analysis in Mango Boulevard Pty Ltd v Whitton; in the matter of Spencer (Bankrupt) (No 2) [2011] FCA 845 at [23]. Davis DCJ identified three primary purposes:
1. Avoiding Multiple Taxations
The rule promotes judicial economy by consolidating all costs issues to be dealt with at the conclusion of the proceedings. This prevents the inefficiency of multiple taxation proceedings throughout the life of the litigation.
2. Preventing Apparent Unfairness
As noted at [62], the rule "avoids the apparent unfairness which may arise if, at an early stage in the proceedings, the party who is ultimately successful is required to pay costs to a party who is ultimately unsuccessful." This recognizes that interlocutory success may not translate to ultimate success in the substantive proceedings.
3. Preventing Tactical Exploitation
The rule "prevents interlocutory proceedings being used as a weapon to exhaust the financial resources of one of the parties": QBE Insurance v Coffey at [62], citing Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727; (2009) 257 ALR 503 at [20] (Besanko J). This is particularly important where there is a significant disparity in the financial resources of the parties.
When Costs May Be Ordered Forthwith
While the general rule favors costs being payable "in any event," the District Court retains discretion to order costs payable forthwith in exceptional circumstances. As stated in QBE Insurance v Coffey at [61], such an order will only be made where "there is something out of the ordinary so as to warrant the making of such an order."
The mere fact that interlocutory proceedings are "difficult, complex and important" or involve "substantial" quantum of costs does not, without more, justify departure from the usual practice: QBE Insurance v Coffey at [64]-[65]. In that case, Davis DCJ rejected arguments that costs should be paid forthwith despite the defendants' success in discharging a freezing order, finding at [70] that the plaintiff's application "was [not] ill-considered, or needless, or in the category of applications that ought to be discouraged."
Examples of circumstances that may warrant costs being paid forthwith include:
Ill-considered or defective applications that fall within the category of proceedings that ought to be discouraged: Cristovao v Butcher Paull & Calder [2008] WADC 49 at [56]
Needless applications that represent an abuse of process: Cristovao v Butcher Paull & Calder at [58]
Unreasonable or reprehensible conduct by a party, coupled with long delays before final determination: Mango Boulevard Pty Ltd v Whitton at [24]
Relationship with Supreme Court Practice
It is important to note that the District Court's approach differs from the Supreme Court's practice under Consolidated Practice Direction 4.7.1, which provides that "as a general rule, when an order for costs is to be made against a party in interlocutory proceedings, the costs will be ordered to be paid forthwith or by a particular date": QBE Insurance v Coffey at [63].
However, as Davis DCJ acknowledged at [69], the Supreme Court's practice direction "may be a guide to the exercise of my discretion in an appropriate case in this court." The key consideration is whether the policy objectives underlying the Supreme Court's approach—particularly discouraging ill-considered or needless interlocutory applications—are engaged in the particular circumstances.
Practical Considerations
When considering whether to depart from the usual practice, the court should have regard to:
The nature and merits of the interlocutory application
The conduct of the parties
Any disparity in financial resources between the parties
The likely delay until final determination
Whether the proceedings are likely to remain in the District Court or be transferred
As noted in QBE Insurance v Coffey at [74], where proceedings may be transferred to the Supreme Court, "there is no reason why taxation of the costs of these interlocutory proceedings could not take place in the Supreme Court, if this matter is transferred there, as the Determination also applies to the taxation of costs in the Supreme Court."
Conclusion
The District Court's practice of ordering costs "in any event" reflects a balanced approach to interlocutory costs orders that promotes efficiency, fairness, and access to justice. While the court retains discretion to order costs payable forthwith in appropriate cases, the general rule serves important policy objectives that should not be lightly displaced.