Feaver v Smith

In the matter of Feaver v Smith, the applicant sought a special costs order under section 215 of the Legal Practice Act 2003. The proceedings involved a dispute between the applicant and the respondent, with the application for special costs being lodged more than two years after the conclusion of the primary litigation. The case was heard in the Supreme Court of Western Australia.

The court was required to determine several legal issues, including whether the applicant had leave to apply for special costs beyond the 30-day period stipulated in O 66, r 51 of the Rules of the Supreme Court (WA). Additionally, the court needed to consider whether an extension of time to apply for the costs was permissible under O 3, r 5 of those rules. Furthermore, the court had to assess whether the District Court possessed the inherent jurisdiction to vary an extracted costs order and whether the slip rule applied to such orders. The court also examined whether the special costs order was supplementary to the existing costs order, and if the delay in bringing the application constituted a matter of unusual difficulty, complexity, or importance.

The court found that the applicant did not have leave to apply for special costs outside the 30-day period and that an extension of time to apply was not appropriate under the circumstances. The District Court was deemed to have no inherent jurisdiction to vary an extracted costs order, and the slip rule did not apply. The special costs order was not considered supplementary to the existing costs order. Given the significant delay in bringing the application and the absence of any compelling reason to grant the special costs order, the court declined to exercise its discretion in favour of the applicant.

The court's final orders dismissed the application for a special costs order and noted that the applicant's delay in bringing the application was a critical factor in its decision.