A Final Resolution to the Question of Leave to Appeal from Costs Orders in the Federal Court

Abstract

Given recent and divergent court decisions, whether a party requires leave to appeal from a final costs order in the Federal Court of Australia remains unclear. On one view, such orders are interlocutory in nature, with leave to appeal required by the operation of s 24(1A) of the Federal Court of Australia Act 1976 (Cth). On the other, however, costs orders made at the final disposition of the proceeding (or which finally determine any outstanding costs issues in dispute) may fall outside traditional conceptions of “interlocutory orders”. If correct, the latter view would expose parties (and the Court) to significant and protracted delays where parties would be able to delay the finalisation of (and possibly fragment) proceedings by appealing costs orders to the Full Court. This article analyses the current treatment of costs orders in the Federal Court, with regard to historic jurisprudence concerning the definitions of interlocutory and final orders. It argues that leave to appeal from costs orders should be necessary and legislative amendment is required to put the issue beyond dispute.

Keywords: costs, civil procedure, leave to appeal, Court Procedure Rules