Maletic v Comcare

In Maletic v Comcare, the Federal Circuit Court dealt with an application by the applicant, Ms Maletic, seeking an order that the maximum costs recoverable on a party to party basis be capped in her proceedings against Comcare. The primary legal issue before the Court was whether it should exercise its discretion under Federal Court Rules 2011 (Cth) r 40.51 to cap the costs recoverable. Factors influencing this discretion included the relevance of the decision in Perrett v Commissioner for Superannuation (1991) 23 ALD 257, Ms Maletic's likelihood of discontinuing the proceedings if costs were not capped, evidence of her financial hardship, and any public interest or novel points of law involved.

The Court found that Perrett was not relevant to the application of r 40.51 in this context. Furthermore, while Ms Maletic claimed that she would be forced to discontinue the proceedings if costs were not capped, the Court was not satisfied by the scant evidence of her financial hardship. There was no public interest claim or novel point of law that warranted an order capping costs. The Court also noted the relatively low amount Ms Maletic sought to cap. Given these findings, the Court dismissed Ms Maletic’s application, holding that the appropriate order was to refuse her request to cap costs.

Consequently, the Court ordered that the interlocutory application filed on 3 May 2016 be dismissed and that the costs of and incidental to the interlocutory application be costs in the cause. The Court also invited submissions from counsel regarding the costs of the interlocutory application, should any have been made. This decision underscores the stringent criteria required for a court to exercise its discretion to cap costs in litigation.