Clone Pty Ltd v Players Pty Ltd (No 9)

Clone Pty Ltd sought to reject Players Pty Ltd's submissions regarding costs, arguing for an indemnity basis for the costs of the argument and all incidental matters. Clone also sought an order that the costs of the argument should be certified as fit for Senior Counsel. The dispute involved a complex litigation history, spanning several Supreme Court rules regimes, including the 1987 Rules, the 2006 Rules, and the Uniform Civil Rules 2020. The case had been through various stages of taxation and appeal, with the original orders made by Vanstone J in 2005, which were later varied and then reinstated by the High Court.

The court had to determine the applicable rules governing the taxation of costs, considering the historical context of the litigation and the various rules in force during the litigation. The primary issue was whether the taxing officer could deviate from the original costs order when assessing costs, particularly in light of the 1987 Rules, which defined costs as those necessarily and reasonably incurred. The court also needed to clarify the distinction between the taxing officer's role in assessing costs according to the order and the broader powers of the trial judge to sanction misconduct.

The court concluded that the taxing officer's role is limited to assessing costs in accordance with the terms of the original costs order, and they could not deviate from it by excluding certain costs. The broad power to disallow wasted costs due to recognised conduct is distinct from the broader power to sanction misconduct, which lies with the trial judge or appellate court. The 1987 Rules, specifically rule 101.7(6)(a), applied to the taxation as it had commenced before the commencement date of the newer rules.

Ultimately, the court rejected Clone's submissions and ruled that the taxing officer's assessment of costs should strictly adhere to the original costs order. The court's decision confirmed the limited role of the taxing officer and reinforced the distinction between cost assessment and misconduct sanctions.