• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Rule 4.03.2 provides that where “3 years or more has elapsed since any party has taken any step in a proceeding”, no further step may be taken without leave of the Court or a Justice [2]. Google’s application therefore required the Court’s permission before it could file the bill.

The costs order arose in a larger dispute. Defteros had commenced proceedings in the Supreme Court of Victoria in 2016, alleging defamation arising from a hyperlink to a newspaper article about him that appeared in Google search results [4]. The special leave application refused in 2018 was part of an interlocutory dispute about Google’s defence, rather than an appeal determining the substantive defamation claim [6]. The litigation continued after the costs order. In August 2022, the High Court upheld Google’s appeal in the substantive proceedings, and judgment was entered for Google [4]. The judgment also records other costs orders in the litigation, including orders in Defteros’s favour connected with Google’s successful appeal [6].

Defteros opposed leave. He said the solicitor who had carriage of the proceedings until December 2018, Kevin Dorey, had died in May 2022. He also described stress and uncertainty associated with the continuing costs issues [11], [13]. Beech-Jones J granted leave [15].

Why the court decided this way

The Court’s reasoning concerned the explanation for the delay and the claimed prejudice. It did not determine a general test for every delayed application to file a bill of costs.

On delay, the Court considered the character of the costs order and the progress of the underlying litigation. The 2018 order concerned costs of an interlocutory application, while the substantive proceedings continued for years afterwards. In that context, the Court considered it understandable that Google did not seek immediate assessment but waited until the litigation concluded [10]. It was also apparent that the dispute might resolve on terms that made separate quantification of those costs unnecessary [10].

That reasoning matters because the delay was assessed against the procedural history, rather than in isolation. The Court was not deciding an application to revive a dormant substantive action. It was deciding whether a costs bill relating to an earlier step in continuing litigation could be filed for assessment after the broader dispute had progressed.

The Court separately considered the authorities on applications for leave after a period of inactivity. It referred to William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490. There, the High Court had described the purpose of the predecessor rule as prohibiting further prosecution of proceedings in which no step had been taken for six years, unless leave was given. It said that an applicant should show good reason for an exception [7]. In William Crosby, leave had been sought after a ten-year period in proceedings that had not yet reached trial. The Court considered the unexplained delay and the risk that records or witnesses would no longer be available relevant to refusing leave [8].

Beech-Jones J noted that some single-Justice decisions had considered prejudice without requiring an acceptable explanation for the delay, while Defteros submitted that this approach was inconsistent with William Crosby [9]. The judgment also discussed Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd, where Bell J had stated that whether good reason existed required consideration of all the circumstances and that inexcusable delay did not necessarily prevent a finding of good reason [9]. Beech-Jones J expressly declined to resolve whether these authorities reflected materially different approaches or to choose between them. Instead, the application was decided on its circumstances [10].

The claimed prejudice from Mr Dorey’s death was not accepted as real prejudice. The bill recorded the time and costs of Google’s solicitors and counsel, rather than the work undertaken by Defteros’s lawyers. Beech-Jones J considered that Defteros’s files should show the state of the litigation in 2018. Another solicitor at his firm, Michael Cunningham, remained employed there and had worked on the proceedings. The Court also considered that the types of work involved in preparing and conducting a special leave application, and the appropriate rates for such work, were well known [12].

The Court acknowledged that Defteros experienced stress and uncertainty about his costs position. But it did not accept that Google had caused “prolonged delay” [14]. It also took account of the wider costs context: Defteros was seeking assessment of his own costs relating to Google’s successful appeal, and there were other costs orders between the parties. In those circumstances, the Court considered it unjust to deny Google the opportunity to assess the costs order in its favour and have that assessment contribute to determining the parties’ net position [14].

Before and after state of the law

The rule applied in this judgment sets a procedural time threshold: after three years without a step in a proceeding, a further step requires leave [2]. The judgment does not hold that every application to file a costs bill after that period must be treated in one particular way. Nor does it resolve whether an applicant must always provide an acceptable explanation for delay, or whether the inquiry may in some cases focus principally on prejudice.

Before this decision, the judgment records two strands of authority. William Crosby supplied the general rationale that a rule restricting further steps after prolonged inactivity requires an applicant to show good reason to be excepted from the prohibition [7]-[8]. By contrast, Beech-Jones J noted decisions concerning costs bills in which the Court had considered prejudice without requiring an acceptable explanation for delay, including Hospital Products Ltd v United States Surgical Corporation and Mineralogy Pty Ltd v Sino Oron Pty Ltd [9]. Defteros argued that those decisions were inconsistent with William Crosby [9].

The judgment’s treatment of Doppstadt also records a way of framing the inquiry: all circumstances may matter, and delay that is inexcusable does not necessarily foreclose a finding of good reason [9]. But Beech-Jones J did not adopt that proposition as a definitive resolution of the debate. The judgment says it was unnecessary to decide whether there was a substantive difference between the approaches [10].

After the decision, the outcome establishes that, on these facts, leave was granted because the delay was explained by continuing litigation and the asserted prejudice did not justify refusing leave. It should not be read as a ruling that delay is irrelevant, that a costs bill may always be filed after three years, or that prejudice is the only consideration. The Court’s express reservation in [10] limits the broader precedential claim that can be made from the decision.

Key passages with plain-English translation

At [2], the judgment sets out the operative rule: “Where 3 years or more has elapsed since any party has taken any step in a proceeding, no step shall be taken without the leave of the Court or a Justice.” In plain English, once the specified period has passed without a step in the proceeding, a party needs permission before taking a further step. The application concerned permission to file Google’s bill of costs.

At [7], the judgment recounts William Crosby’s explanation that the rule was intended “to forbid the further prosecution of proceedings in which no step has been taken for six years unless leave is given to continue”. The point of that passage is the rule’s role as a restriction on continuing inactive proceedings, rather than a mechanism for the Court to set a timetable for active litigation. The judgment uses this historical explanation as context; it does not decide that the six-year predecessor and the current three-year rule operate identically in every respect.

At [10], Beech-Jones J states: “It is unnecessary to address whether, as a matter of substance, there is any difference in approach revealed by these cases, much less determine which approach is to be preferred.” In plain English, the Court saw no need to settle the disagreement about the governing approach because the application could be resolved on the particular facts.

Also at [10], the Court explains that the delay was “sufficiently explained” because the costs related to an interlocutory application and the substantive proceedings continued after the costs order. The Court considered it understandable that a party would wait until the litigation ended, partly because the matter might resolve without needing separate quantification of that costs order.

At [12], the Court says the death of the solicitor “does not amount to any real prejudice”. It explains why: the bill concerned Google’s lawyers’ work, Defteros’s files should record the state of the litigation, and another solicitor at his firm had knowledge of the proceedings. The passage shows that the Court considered the practical capacity to scrutinise the bill, not just the loss of one solicitor’s personal recollection.

At [14], the Court says it would be unjust to deny Google the opportunity to assess its costs and include that assessment in an “overall determination of the net position” between the parties. This reflects the interconnected costs orders and assessment applications in the wider litigation. It does not determine the amount of Google’s bill or the eventual net amount payable between the parties.

What fact patterns trigger this precedent

The decision is most directly relevant to applications for leave to take a procedural step after three years or more, where the proposed step is filing a bill of costs for assessment and the costs order arose in litigation that continued after it was made. Its reasoning is particularly tied to the explanation that the substantive proceedings remained ongoing and that waiting for their conclusion could avoid unnecessary separate quantification [10].

It may also be relevant where a party opposes leave by pointing to lost access to a former solicitor or that solicitor’s knowledge. The judgment indicates that such a claim is assessed in context: what the bill contains, what records are available, whether other lawyers retain knowledge, and whether the work can otherwise be evaluated [11]-[12]. The decision does not establish that the death or unavailability of a solicitor can never amount to prejudice. It records why the asserted prejudice did not persuade the Court on these facts.

The costs context may also matter. Here, Defteros was seeking assessment of costs in his favour, while other costs orders existed between the parties [6], [14]. The Court considered whether refusing leave would prevent one side from having a costs order assessed as part of a broader accounting between the parties. That consideration formed part of the decision; it is not stated as an independent rule that a net costs position must always outweigh delay or prejudice.

The decision is less directly analogous to an application to revive dormant substantive proceedings after a lengthy period, particularly where evidence may have been lost or witnesses become unavailable. The judgment’s account of William Crosby identifies those concerns in a case involving proceedings that had not reached trial and an unexplained ten-year delay [8]. Beech-Jones J did not equate that situation with Google’s application about an interlocutory costs order in continuing litigation.

How later courts have treated it

The materials provided contain no decisions after 7 February 2024 addressing how later courts treated Defteros v Google LLC [2024] HCASJ 6. It is therefore not possible, on this source record, to say whether later courts have followed, distinguished, applied or questioned it.

The judgment itself discusses earlier authorities. It describes William Crosby and the approach in that case, and refers to decisions of single Justices concerning leave to file bills of costs, including Hospital Products and Mineralogy [7]-[9]. It also discusses Doppstadt, including Bell J’s observation that all circumstances may be relevant and that inexcusable delay does not necessarily preclude leave [9]. Those are authorities considered in the 2024 judgment, not later treatment of it.

A careful account of the decision’s precedential reach should therefore distinguish its actual order from the question it left open. It granted leave in Google’s case [15]. It did not determine which of the proposed approaches should generally govern delayed costs bills [10]. Any claim about later adoption or rejection would require additional judgments not included in the supplied text.

Still-open questions

The judgment leaves open whether there is a genuine difference between the authorities’ approaches to leave applications concerning costs bills. Beech-Jones J expressly did not decide whether the cases differed in substance or which approach was preferable [10]. The decision consequently does not supply a definitive general formula for balancing explanation of delay against prejudice in every application under r 4.03.2.

It also leaves open how the rule applies in different procedural settings. The case concerned a costs bill arising from an interlocutory application, where the substantive litigation continued after the costs order. The judgment does not decide whether the same reasoning applies where the proceedings have long been inactive, where the underlying dispute concluded much earlier, or where the relevant records and witnesses are unavailable.

The Court’s prejudice assessment was fact-specific. It relied on Defteros’s files, the continuing employment of another solicitor familiar with the proceedings, and the nature of the work and rates involved in a special leave application [12]. The decision does not specify what evidence would be sufficient to establish real prejudice in another case, or how the assessment might differ if the missing person held unique information necessary to challenge the bill.

Finally, granting leave did not determine whether Google’s claimed costs were reasonable or the amount payable. The order allowed Google to file its bill for assessment [15]. The judgment addresses permission to take that step, not the assessment outcome or the final balance between the parties.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.