Guidance Note 11 – Recovery of costs in court proceedings

The key topics covered in this note are:

• when a Commonwealth entity should seek to recover costs in court proceedings
• seeking costs for the use of in-house lawyers, and
• seeking costs for the Solicitor-General’s time.

General presumptions and factors to consider when seeking costs

1. There are general presumptions about the Commonwealth’s recovery of costs:

• accountable authorities of non-Corporate Commonwealth entities have an obligation to actively pursue debts¹
• the Commonwealth may seek costs where there is a legal basis for doing so
• it is generally considered to be in accordance with legal principle and practice for the Commonwealth to enforce costs orders in its favour², and
• the Commonwealth’s model litigant obligations do not prevent it from enforcing costs orders or seeking to recover its costs.³

2. Factors which may be relevant in deciding to seek or enforce costs include whether:

• the other party caused unnecessary expense and delay in the proceedings
• there is an apparent need to deter vexatious litigation in the future
• the debtor is apparently able to pay, and
• the anticipated expense in recovering costs does not outweigh the recoverable or potentially recoverable costs.

3. Sometimes it may be appropriate to seek a costs order but defer a decision on enforcing the order.

4. It may not be appropriate to seek or enforce costs where it is not in the Commonwealth’s best legal and financial interests, or where it may result in a further drawn-out legal process, or the spending of further legal fees and investment of judicial resources.

In-house lawyer’s costs

5. The Commonwealth is entitled to claim costs for its use of in-house lawyers.⁴ These costs are limited to the portion of the in-house lawyer’s salary that was expended on the proceedings in addition to overheads for the costs of maintenance of premises, legal support staff, photocopying and the like.⁵

Solicitor-General’s costs

6. If the Commonwealth is seeking costs in a matter and the Solicitor-General has acted for the Commonwealth, the Commonwealth should seek costs for the Solicitor-General’s time. Contact the Office of Legal Service Coordination (OLSC) for further guidance if this situation arises.

Where can I get further help?

7. If you have any questions about recovery of costs, please contact OLSC at olsc@ag.gov.au.

Office of Legal Services Coordination
Phone: 02 6141 3642
E-mail: olsc@ag.gov.au
Issued: March 2026

This guidance material is of a general nature only and does not convey or contain legal advice.

Endnotes

¹ Section 11 of the Public Governance, Performance and Accountability Act 2013.

² See Note 2 to section 46 of the Legal Services Directions 2025 (Directions).

³ See Note 5 to section 41 of the Directions.

⁴ Lenthall v Hillson [1933] SASR 31.

⁵ Environment Protection Authority v Taylor Woodrow (Aust) Pty Ltd (No2) (1997) 97 LGERA 368.