COSTS — Party/Party — Whether it is “in the interests of justice” to make an order for costs, departing from the general rule in s 247(7) of the Legal Profession Uniform Law 2014 (NSW) that no order as to costs be made on appeal under that section — Where plaintiff’s cause of action lacks reasonable prospects of success — Where plaintiff’s claim involves unsubstantiated allegations of fraud and dishonesty — Where the serious legal and evidentiary deficiencies of the plaintiff’s claim were made clear to the plaintiff by the Fidelity Fund Management Committee prior to the proceedings — Where plaintiff’s conduct during the course of the proceeding was unreasonable — Interests of justice favour the plaintiff paying the defendant’s costs on ordinary basis
Quick Take
1Under s 247(7) of the Legal Profession Uniform Law 2014 (NSW), the court retains a discretionary power to order costs on a Fidelity Fund appeal where the 'interests of justice' so require, and the matters relevant to that assessment are neither identified nor limited by the statute.
2Factors warranting departure from the default no-costs rule include: the claim lacking reasonable prospects of success, unsubstantiated allegations of fraud or dishonesty, the deficiencies having been clearly identified by the decision-maker prior to the appeal, unreasonable conduct during the proceedings, and the impact of unrecovered costs on the Fidelity Fund's resources available to other claimants.
3While allowances may be made for a self-represented litigant's lack of legal training, self-represented litigants can reasonably be expected to understand that serious allegations of dishonesty should not be made without supporting evidence.
