Law of Costs

Essentially what underlie the law of costs are attempts to regulate and control the price of justice. In a sense the need for such regulation and control, inter alia, arises out of what the Western Australia Law Reform Commission has termed the ‘uncomfortable tension between legal costs and justice’. The Commission remarked that ‘[a]ll people in a free and democratic society regard justice not as a privilege, but as a right’, and so ‘there is something inherently inconsistent in the notion that justice is a right which must be paid for’. 2 It also dictates that, with particular reference to curial control on who pays costs and how much, the court need be invested with a discretion as to costs. Hence the well-known statement that ‘there is only one immutable rule in relation to costs, and that is that there are no immutable rules’. Moreover, the court’s costs jurisdiction and discretion reflects its ability to control standards in the profession, it being judicially observed that ‘[o]rders for costs are one of the ways, possibly one of the most effective ways, of a court controlling the standards of the profession and the efficiency of litigation’.