Precedents

 

The Commission is of the view that as submitted by Counsel Assisting (and supported by the authorities referred to in those submissions: the Commission may have regard to the previous practice of the Court;

the Commission is not bound by the previous practice of the Court and the policies to be adopted by the Commission is respect of the exercise of the discretion as to costs are matters for the Commission;

 in formulating its policy as to costs the Commission may have regard to Section 21(5)g of the Act which expressly provides that costs may be awarded against a party where proceedings have been brought frivolously or vexatiously. Such an approach would be consistent with the characterisation of the functions of the Commission as administrative rather than judicial;

if the Commission is minded to exercise its discretion regarding costs against any party then that party must be put on notice of the prospect of any order being made and given the opportunity to put submissions on the questions of whether an order should be made;

the discretionary nature of costs does not easily permit the formulation of any concrete rules as to the exercise of that discretion where the merits of the substantive matter are not argued and the issues become moot, except for the issues of costs itself;

where the Court has such a broad discretion as to costs the conduct of the parties to the proceedings and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs;

although there is no merit in trying a hypothetical case or one that has otherwise been resolved it may be that one of the parties has acted so unreasonably that the other party should obtain the costs of the action;

in determining the reasonableness of the actions of either party it may be relevant to consider the operation of the rules of the Commission, the parties' compliance with them and the motivation behind any application to discontinue proceedings;
if it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile the proper exercise of the costs discretion will usually mean that the court will make no order as to the costs of the proceedings;
it may be that, despite both parties having acted reasonably, one party was almost certain to succeed if the matter had proceeded and
these principles can only be applied on a case by case basis within the context of the broad discretion to award costs granted by section 21 of the Act.