Retaining that silk may be tempting, but be prepared to bear the brunt of a costs order if the court deems it unnecessary.

A key aspect of litigation that is often overlooked by both lawyers and clients is the overriding purpose principle, which is clearly set out in both the New South Wales and Victorian Civil Procedure Acts (The CPAs). Section 56 of the NSW CPA stipulates the ‘the just, quick and cheap resolution of the real issues in the proceedings’ as an overarching principle. Both parties and their solicitors are placed under a duty to assist the court achieve this principle under the CPAs.

Ignoring the overriding purpose principle is done at your own peril. Frustrated by the disregard shown by parties and their solicitors, the courts have increasingly showed a willingness to correct this apathy with stinging costs orders.

Now that you are aware that you not only owe this duty to the court but are likely to get more than a rap over the knuckles if you ignore it, you should follow these simple guidelines to avoid being saddled with an adverse costs order.

For Lawyers:

  • Try to resolve as many peripheral issues between parties outside the court. This means resolving interlocutory issues by a telephone call between parties and filing motions as a last resort.[1] The High Court in Expense Reduction and Analysts Group Pty Limited expressed a clear disapproval for ‘unduly technical and costly disputes about non-essential issues’.[2]
  • ‘Civility, trust and mutual respect’ are expected of solicitors and barristers, and must ‘never be abandoned at the behest of clients’.[3] If you negotiate with other parties in a reasonable manner and reach a compromise on an outcome, the court will be unlikely to award adverse costs.[4]
  • Don’t leave things till the last moment! In Aon Risk Services the Australian National University sought to amend their case in the third day of the trial.[5] The High Court didn’t take kindly to this, dismissing the proposed amendment and ordering costs against Australian National University.
  • Avoid providing unnecessary and excessive volumes of documents to the court. Justice Kunc in Tugral was particularly frustrated with the ‘practice of exhibiting … an evidentiary cornucopia from which only a few morsels are ultimately selected to be referred to in argument.’[6]

Still not convinced? You should have a chat to the applicant’s solicitors in Yara Australia Pty Limited v Oswal who had to pay 50 percent of the respondent’s appeal book costs because the court decided they filed ‘excessive materials’.[7]

For Clients:

  • While you might not always understand the specifics of what your lawyer is doing in your proceedings, ask them to justify the particular course of action taken and remind them of the overriding purpose principle.
  • Don’t be frustrated if your solicitor explains that they can’t act on your instructions because of their overriding duty. Yara Australia Pty Ltd & Ors v Oswal made it clear that a solicitor’s obligation to the court takes precedence over a client’s instructions when they are in conflict.[8]
  • Beware of engaging in ‘overrepresentation’. You have a right to representation to the level and extent that is necessary for the proceeding and nothing more. That shiny silk might seem like the answer but you will be on the hook for their shiny fees if the court decides they amount to overrepresentation.[9]

The reality is that the overriding purpose principle isn’t going away anytime soon so we suggest you play by the rules and assist the courts by acting reasonably and making sure you do everything you can to keep proceedings as ‘quick and cheap’ as possible.