Supreme Court Civil Procedure Act 1932

Where an action which, having regard to the sum recovered, could have been properly instituted in some inferior court of civil jurisdiction is instituted in the Supreme Court, the Court, a judge thereof, or a judge, officer, referee, or registrar to whom subsection (2)(b) or (c) refers, may, notwithstanding that the sum recovered does not exceed the jurisdictional limit of the inferior court, make an order allowing the plaintiff the costs of the action.

In any action to which subsection (1) applies – the Supreme Court or a judge thereof;(in the case of an interlocutory judgment or of a reference to a referee) the judge, judge of the inferior court of civil jurisdiction, officer of the court, or referee by or before whom the amount recovered in the action was ascertained or determined; or(in the case of a final judgment by default) the registrar at the registry in which the judgment is signed or entered – may allow the costs or any part of the costs of the action on any Supreme Court scale of costs, or any scale of costs in any inferior court of civil jurisdiction, as it or he, as the case may be, thinks fit.

In considering whether to make an order under subsection (1), the Supreme Court, a judge, or any other person referred to in subsection (2) shall take into account all the circumstances of the case, including (without in any way limiting the generality of this subsection) – the sum sought to be recovered; the sum recovered; and where applicable, any counter-claim, set off, or contributory negligence.

In any case in which the amount recovered in the action has been ascertained or determined by or before a judge (whether as a final or part of a final judgment or under an interlocutory judgment), or by or before any judge of any inferior court of civil jurisdiction, or officer of the court under an interlocutory judgment, or by a referee on a reference, any such order as is mentioned in subsection (2) may be made at the trial, inquiry, reference, or other hearing at which the amount recovered in the action is ascertained or determined, or at any time thereafter before the costs of the action are taxed or the amount thereof is otherwise determined.

In any such case as is mentioned in subsection (3) the application for an order under subsection (2) shall (except in cases where it has become impossible, impracticable, or inconvenient so to do) be made to the judge, judge of the inferior court of civil jurisdiction, or officer of the court, or referee by or before whom the amount recovered in the action was ascertained or determined. In any case in which an application for an order under subsection (2) has not been made at the trial, inquiry, reference, or other hearing at which the amount recovered in the action was ascertained or determined, and in which it has become impossible, impracticable, or inconvenient to make the application to the judge, judge of the inferior court of civil jurisdiction, or officer of the court, or referee by or before whom the amount recovered in the action was ascertained or determined, the application shall be made to another judge (if the amount recovered in the action was ascertained or determined by a judge) or to a judge (if the amount recovered in the action was ascertained or determined by a judge of an inferior court of civil jurisdiction or an officer of the court or a referee).

In the case of a final judgment by default an order under subsection (2) may be made by the registrar at the registry in which the judgment is signed or entered at the time of the taxation of the costs of the action, or if the costs of the action are not required to be taxed, then at any time before final judgment is signed or entered.

An order of a judge under this section, and the refusal by a judge to make such an order respectively, shall be deemed to be an order as to costs only within the meaning of section 44.

An order of a judge of an inferior court of civil jurisdiction, or an officer (including a registrar) of the court, or a referee, under this section, and the refusal by a judge of an inferior court of civil jurisdiction or an officer (including a registrar) of the court, or a referee to make such an order, shall be subject to appeal to a judge in the same cases in which an appeal from an order of a judge as to costs only lies to a Full Court.

This section shall not apply to any action in which the defendant was residing outside the Commonwealth of Australia at the time the action was instituted.