News — Recent Supreme Court Judgement on Special Costs

Special costs orders in Western Australia are orders lifting the scale limits, usually in respect of specific Scale items and, in some cases, lifting the hourly rates provided under the applicable scale.


The Court has the power to award special costs orders under section 280(2) of the Legal Profession Act 2008 (WA) (“the Act”). An application pursuant to section 280(2) of the Act is to be determined by applying a two limb test that was enunciated in Heartlink Ltd v Jones (as Liquidator of HL Diagnostics Pty Ltd (in liq)) [2007] WASC 254 (S) at [16] as follows:

  1. The first limb of the test requires that there be a fairly arguable case to be put before a taxing officer to the effect that the bill of costs should tax out at more than the limit which would be imposed by the relevant costs determination.
  2. The second limb of the test requires that the matter be of "unusual difficulty", "complexity" or "importance".

The recent decision of Tonkin v Heilongjiang Feng Ao Agricultural & Animal Husbandry Group Co Pty Ltd [2015] WASC 378 (S) sets out a useful summary of the principles in relation to special costs orders.

Click here for the Judgement.