Bare v Small

The case of Bare v Small was heard in the Supreme Court of Victoria. The plaintiff, Bare, sought a Protective Costs Order against the defendant, Small, to limit Small’s liability for costs should Bare be unsuccessful in the proceedings. The central issue before the Court was whether it had the power to make such an order under the Civil Procedure Act 2010 and whether this power could be exercised in a manner that fixed or capped a party's liability for recoverable costs before the proceeding had concluded.

The court considered relevant statutory provisions and judicial authorities to address this issue. The court examined sections 7, 8, 9 and 65C(2)(d) of the Civil Procedure Act 2010, alongside section 24 of the Supreme Court Act 1986. The court also referenced the decisions in R (Corner House Research) v Secretary for State and Industry, Corcoran v Virgin Blue Airlines Pty Ltd, and Aitken v State of Victoria, which provided guidance on the application of protective cost orders and the principles of judicial discretion in cost management.

The court concluded that the Supreme Court of Victoria does indeed have the discretionary power to make a Protective Costs Order, as provided by the Civil Procedure Act 2010. The court found that the Act’s provisions, particularly section 65C(2)(d), supported the making of such orders to prevent parties from incurring excessive costs. The court also determined that the power to fix or cap a party’s liability for costs could be exercised before the conclusion of proceedings, aligning with the precedents set in the referenced cases.

The final orders of the court were that the plaintiff, Bare, was granted a Protective Costs Order against the defendant, Small, which limited Small's liability for costs should Bare be unsuccessful in the proceedings.