Short v Crawley (No. 44)

In this case, the applicant, Short, sought access to files in order to aid an application for gross sum costs pursuant to section 98(4)(c) of the Civil Procedure Act 2005. The dispute was between Short and Crawley, and the matter was heard in the Supreme Court of New South Wales. The application was for costs associated with the previous proceedings between the parties, which had been extensive and protracted.

The primary legal issue for the court to decide was the extent of the applicant's entitlement to access the files for the purpose of calculating gross sum costs. Specifically, the court had to consider whether the purpose of such an order, which is to avoid delay and cost, justified a departure from the usual requirement of line-by-line consideration of documents. The court was also required to determine if sampling of documents could be an appropriate method to assess the reasonableness of the costs claimed.

In addressing the matter, the court considered the objectives of the gross sum costs order and the practice note SCEQ 11. It concluded that the purpose of the order to avoid delay and cost was significant enough to warrant a flexible approach to the assessment of costs. The court found that sampling documents could be an acceptable method to evaluate the reasonableness of the costs claimed, provided that the sample was sufficiently representative of the overall costs. This approach balanced the need to avoid excessive costs and delays with the requirement to ensure that the gross sum costs were fair and reasonable.

The court granted the application for access to files, allowing the applicant to sample documents to aid in the calculation of gross sum costs. The final orders reflected this decision, providing the applicant with the necessary access to files to facilitate the costs application.