Macks v Viscariello (No 2)

The Full Court of the Supreme Court of Western Australia considered an application concerning the costs of both an appeal and the underlying trial in *Macks v Viscariello (No 2)*. The dispute arose after an appeal was heard, and the question of who should bear the costs of both the appeal and the initial trial before the Primary Judge was before the Full Court.

The central legal issues before the Full Court were whether it possessed the jurisdiction to make orders regarding the costs of the trial, in addition to the costs of the appeal, without a specific order having been made by the Primary Judge. Further, the Court had to determine whether it should depart from the general rule that costs follow the event, and if not, whether the matter of trial costs should be remitted to the Primary Judge for determination.

The Court reasoned that the Full Court, when hearing an appeal, has the power to make orders concerning the costs of the appeal. However, it held that it did not have the inherent power to make orders for the costs of the trial unless those costs had been reserved by the Primary Judge or the appeal itself involved a review of the Primary Judge's costs order. In this instance, as the Primary Judge had not made any order regarding the trial costs, and the appeal did not directly concern that order, the Full Court concluded that it should not determine the trial costs. The Court affirmed the general rule that costs follow the event but found that the appropriate course was to remit the question of trial costs to the Primary Judge for consideration.