AUSTRALIA Law and Practice Contributed by: John Lee, Michael Williams, Siabon Seet and Vanessa Farago-Diener, Gilbert + Tobin
tion in a particularly unreasonable or vexatious manner, eg, by making frivolous or baseless claims, misleading the court, or refusing reason - able offers to settle without justification. Indem - nity costs cover a higher proportion of the win - ning party’s legal expenses, potentially up to the A successful plaintiff can seek to recover its legal fees (including attorney/solicitor and barrister fees), expert witness fees, court filing and hear - ing costs, as well as miscellaneous costs such as court transcripts. At the conclusion of proceedings, the court will either make an order outright in relation to costs or invite the parties to make submissions (written and/or oral) prior to making a final costs order. Typically, the court will make an order that the unsuccessful party pay, eg, 60% of the success - ful party’s costs as assessed or taxed. full amount. 7.5 Costs Following the making of a costs order by the court, the successful party will either file a Bill of Costs or an Application for Lump Sum Costs detailing the costs it seeks recovery of and the relevant amount. These documents are typi - cally prepared by either the acting solicitors or an experienced cost assessor. The unsuccessful party will have an opportunity to respond to the costs application after which the court, usually a registrar and not the hearing judge, will make a final assessment.
• The first tier is the appellate jurisdiction of the relevant court sitting as a Full Court (Fed - eral Court) or Court of Appeal (state/territory Supreme Court). First instance decisions from a single judge of the court can be appealed to the Full Court (Federal Court) or Court of Appeal (state/territory Supreme Court), which is made up of three or five judges. If the decision is interlocutory, leave of the court is required. • The second tier is the High Court of Australia, which is Australia’s highest appellate court. Appeal to the High Court is not a right; spe - cial leave to appeal is required. Appeals to the Full Court or Court of Appeal and the High Court are usually heard within four to nine months, although the time taken for issuing a decision varies. For an appeal to succeed, a party must convince the court that the judge who heard the original case (or the Full Court or Court of Appeal, if appealing to the High Court) made an error of law and that the error was of such significance that the decision should be overturned. Interlocutory Decisions or Orders Appeals from an interlocutory order or decision of the court requires leave of the court to appeal. An interlocutory order or decision is one made during a proceeding before a final decision is given. In the Federal Court, this can be done by: • applying for leave orally – this is made to the judge who delivered the relevant decision or made the relevant order at the time these are pronounced; or
8. Appeal 8.1 Appellate Procedure
There are two tiers of appeal above a single judge of the Federal Court and state/territory Supreme Court.
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