Question 11–1 What, if any, provisions should the ALRC propose regarding a court’s power to make costs orders?

11.86 At this stage in the Inquiry, the ALRC has not made a proposal on a court’s power to make costs orders in a cause of action for serious invasion of privacy. The ALRC welcomes stakeholder feedback on this issue. The ALRC is particularly interested in the issue of costs in the context of ensuring access to justice.[115]

11.87 The VLRC recommended that costs be dealt with in accordance with s 130 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).[116] That section provides that each party should bear their own costs in a proceeding, unless the Tribunal orders one party to pay all or a part of the costs of the other party, if that would be fair to do so. This recommendation is consistent with the VLRC’s recommendation that their proposed privacy actions be heard in the VCAT. Any proposal on costs will depend on the forum in which a statutory cause of action is heard.

11.88 PIAC’s submission raised the concern that many plaintiffs will be deterred from starting proceedings due to the risk of an adverse costs order.[117] PIAC suggested that if the cause of action were to be vested in a federal court, the ALRC should propose that courts be empowered to make orders protecting litigants from adverse costs orders.

11.89 Special provisions about costs orders may be made in the legislation enacting the statutory cause of action, or it may be preferable to rely on any discretion given to the court hearing the matter under its own enabling legislation.