The 'Price' of Justice? Costs-Conditional Special Leave in the High Court

Abstract

This article considers the High Court of Australia's occasional practice of granting special leave to appeal on a costs-conditional basis, whereby the appellant pays the respondent's costs regardless of the outcome. Despite the dissonance between this practice and traditional costs principles, there is little academic or judicial reflection on costs-conditional special leave. While several policy considerations support this practice, it is not unproblematic. What factors guide the exercise of this discretion? Why must an ultimately successful appellant fund the litigation? Should a party's financial status be a relevant consideration? If the Court is willing to depart from traditional costs rules here, why not elsewhere? This article uses quantitative and qualitative frameworks to consider such issues.