Bare v Small

(2013) 47 VR 255; [2013] VSCA 204

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Protective Costs Orders
4. › Power to make order capping recoverable costs in advance of proceedings
5. › Whether Court of Appeal has power to make Protective Costs Order
6. › Discretionary considerations
7. › Civil Procedure Act 2010 (Vic), ss 7, 8, 9, 65C(2)(d)
8. › Supreme Court Act 1986 (Vic), s 24
1. Practice and Procedure
2. › Costs
3. › Protective Costs Orders
4. › Factors relevant to exercise of discretion
5. › Public importance of issues
6. › Financial circumstances of applicant
7. › Whether applicant would discontinue proceedings
8. › Whether proceedings arguable and not frivolous
9. › Whether reciprocal order appropriate
1. Human Rights
2. › Charter of Human Rights and Responsibilities Act 2006 (Vic)
3. › Right not to be treated in cruel, inhuman or degrading way
4. › Whether right generates duty of independent investigation
5. › Whether breach of s 38 amounts to jurisdictional error
6. › Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 10(b), 38

Quick Take

The Victorian Court of Appeal has power under s 65C(2)(d) of the Civil Procedure Act 2010 (Vic) to make Protective Costs Orders capping a party's liability for recoverable costs in advance of an appeal. The Corcoran factors (including public importance, arguability, financial circumstances, and likelihood of discontinuance) guide the discretion but do not constitute a test and are not exhaustive. The question whether PCOs must invariably be reciprocal remains open.