SHOULD A COSTS-CAPPING ORDER BE WADE?
64 Rule 40.51(1) of the Rules provides that a party may apply to the Court for an order specifying the maximum costs as between party and party that may be recovered for the proceeding. The applicant seeks an order that the maximum costs that may be recovered against her is "$0". In other words, she seeks an order that, if made, would deny the respondent the opportunity to recover costs against the applicant should an order for costs be made in the respondent's favour.
65 In her written submissions dated 16 September 2024 in support of this order, the applicant recites various elements of her claim. She disputes the decision-maker's acceptance that the service record does not exist. The applicant submits that BMW North Shore: (a) made two admissions that the service record exists; and (b) expressed an opinion that the service record does not exist. The applicant says that the latter is an inadmissible opinion for the purposes of the Evidence Act 1995 (Cth) (the Evidence Act). She argues that the decision-maker relied on this "opinion" as the "best available evidence" notwithstanding the admissions that, on her case, were made.
66 The applicant submits that this proceeding raises:
… an important legal principle that (sic) of public importance: whether an opinion that is not admissible is the 'best available evidence'.
67 The applicant develops this submission by contending that the respondent did not give any reason to "justify" BMW North Shore's "opinion" as "the best available evidence".
68 She then points to the definition of "costs as between party and party" in the Dictionary in Sch 1 to the Rules:
costs as between party and party means only the costs that have been fairly and reasonably incurred by the party in the conduct of the litigation.
69 The applicant appears to submit that, if the respondent succeeds in the proceeding, any costs it incurs from 18 July 2024 would be "unfair and unreasonable" because they would be costs "caused" by its own conduct. In her reply submissions, the applicant advances a variant of this argument. She contends that, should the respondent succeed for reasons it has not provided to her, then the respondent's costs will have been incurred "unfairly and unreasonably".
70 I do not accept these submissions. They do not withstand scrutiny.
71 First, the applicant's case, as outlined by these submissions, does not raise an important legal principle of public importance.
