Appellant v Respondent

2 Ma appealed the Magistrate's decision to dismiss the review application on 23 March 2024 ('appeal'). On 17 June 2025 I delivered my Judgment in Ma v Ashraff [2025] VSC 350, allowing the appeal and remitting the review application to the Magistrates' Court for reconsideration.

3 At hand down of the Judgment, the parties agreed that the costs of the appeal be reserved to allow the parties to confer on the issue. On 26 June 2025, I ordered that Ma file and serve a document setting out the costs he sought in respect of the appeal. Ma filed his documents on 23 June 2025. Ashraff did not agree to these costs, in which case the 26 June orders provided that each party was to file and serve brief submissions to be determined on the papers.

4 Ma relies on the following documents in relation to the costs he seeks:

(a) Submissions dated 26 June, 18 August and 22 August 2025;

(b) an affidavit sworn by him on 23 June 2025; and

(c) an affidavit sworn by his associate Zhanyu Zhong on 18 June 2025.

(a) Submissions dated 11 July 2025;

(b) letters from Ashraff's solicitors to Ma dated 19 June 2024 and 23 July 2024; and

(c) a spreadsheet of Ma's disbursements with a brief statement of Ashraff's position on whether each cost ought be allowable.

6 Ma is self-represented and has been assisted by an interpreter throughout the proceeding. Zhong accompanied Ma at hearings and prepared submissions, other documents and email correspondence on his behalf.

7 On 13 June 2024, McCann JR heard and determined a summons issued by Ma in which he sought, amongst other things, a range of documents from Ashraff's insurer and that a representative from the insurer attend the appeal to give evidence ('subpoena application'). Ma filed and served a large range of material in support of the subpoena application including two affidavits and lengthy submissions. Ashraff responded to the materials with his own submissions. The subpoena application was ultimately dismissed. McCann JR ordered that Ma pay Ashraff's costs of the application on a standard basis.

8 Ashraff's solicitors wrote to Ma on 19 June 2024 itemising Ashraff's costs in the amount of $11,240.00 and seeking agreement. No agreement was or has been reached.

9 On 23 July 2024, Ashraff's solicitors wrote to Ma to resolve the appeal on the following terms:

(a) the appeal be dismissed and the parties bear their own costs, including that Ashraff forego his costs order of 13 June 2024 in respect of the subpoena application; and

(b) Ashraff would pay Ma the sum of $5,065.28 representing the costs of repairs to Ma's vehicle which he claimed in the Magistrates' Court proceeding.

The letter was in the form of a Calderbank[2] offer. The offer was open for seven days. Ma rejected the offer.

10 As a general matter of practice in civil proceedings, the costs follow the event. However, a successful litigant has no automatic right to an order for costs. Whether such an order will be made is in the absolute discretion of the court.[3] The only constraint is the requirement that the discretion be exercised judicially, taking into account all relevant considerations and ignoring irrelevant considerations.[4] The court's discretion to order costs operates irrespective of whether or not the relevant parties are represented.

11 The principles for awarding costs to self-represented litigants were summarised by Hetyey AsJ in McKechnie v Ma'a [2024] VSC 768 as follows:

A successful self-represented litigant cannot be compensated for their time and labour spent in preparation of their case or attending court. Nor can they recover the time of other persons who are not legal practitioners but who have assisted in preparing the self-represented litigant's case. An order for costs is not intended to compensate for some disadvantage or inconvenience suffered by litigants (legally represented or self-represented). However, it is also clear that a self-represented litigant is permitted to recover reasonable out-of-pocket expenses incurred in the proceeding which, had the litigant been represented, could have been recovered by them or their legal representative. Examples of such expenses and disbursements include: court fees, court-file search fees, process server fees, photocopying, court book preparation costs, and transcript costs.

As a self-represented litigant, the plaintiff is also entitled to employ agents to perform necessary work and recover reasonable out-of-pocket expenses incurred, thereby avoiding a loss of personal time and mitigating the effect of the rule that denies recovery for such loss. Examples of such agents include: law stationers, mercantile agents, or couriers who may assist in filing documents. ... However, a contractual foundation for the engagement of the agent is necessary to distinguish it from a situation in which assistance is given to the litigant on a voluntary basis.[5]

12 A Calderbank offer is admissible on the question of costs.[6] There is no presumption of a particular costs order being made in the event that a rejected Calderbank offer ultimately turns out to be more favourable that the judgment obtained. A special costs order will only be made if the court determines that it was unreasonable in the circumstances to reject the offer.[7] Circumstances relevant to determining whether a Calderbank offer has been unreasonably rejected include:

(a) the stage of the proceeding at which the offer was received;

(b) the time allowed to the offeree to consider the offer;

(c) the extent of the compromise offered;

(d) the offeree's prospects of success, assessed as at the date of the offer;

(e) the clarity with which the terms of the offer were expressed; and

(f) whether the offer foreshadowed an application for an indemnity costs order in the event of the offeree's rejecting it.[8]

13 Ma seeks his costs of the appeal totalling a sum of $20,571.66. This sum includes reimbursement of out of pocket expenses in the sum of $7,320.40.

14 Ma also seeks reimbursement for services provided to him by Zhong. Ma said that since the commencement of his civil litigation in the Sunshine Magistrates' Court, he has engaged Zhong to provide legal and clerical services on a casual employment basis with compensation to be provided at an hourly rate in accordance with the Legal Services Award, under which Zhong is classified as a Legal Clerical and Administrative Employee. Zhong said that the services he has provided to Ma are for document management, court filing, case preparation, email correspondence on Ma's behalf and attendance at hearings. An itemised breakdown of these tasks is set out in Zhong's affidavit of 18 June 2025. Zhong said that the tasks amount to 329 hours set at $41.54 per hour, with an entitlement under the award totalling $13,666.66.

15 Ma submitted that the support Zhong provided was 'strictly administrative'.

16 Ma's rejection of the Calderbank offer was unreasonable because the offer was made at an early stage of the proceeding and involved Ashraff waiving the significant subpoena application costs, and paying the cost of repairs Ma claimed in the Magistrates' Court.

17 The Calderbank offer represented an outcome that was more advantageous than the appeal judgment. Conventionally, Ma would be entitled to his disbursements until the date of the offer, and Ashraff entitled to costs after the offer. Although the respective costs have not been calculated, given that all submissions post-date the offer save for Ma's written argument dated 17 July 2024, the costs incurred after the offer well exceed the costs incurred prior to the offer (excluding the subpoena application costs which have been determined).

18 A relevant consideration in the exercise of the Court's discretion is that Ma filed large volumes of material relating to allegations of judicial fraud, insurance fraud and solicitor misconduct. All of the allegations were baseless and unsubstantiated on appeal.

19 Notwithstanding the above and in order to avoid the costs associated with taxations, the appropriate order in respect of the appeal is that there be no orders as to costs of the appeal. Such an order would acknowledge the success of the appeal, but otherwise take into account both the offer which was made and the fact that large portions of Ma's submissions were unsuccessful.

20 Alternatively, if the Court is minded to award costs to Ma, those costs should only be for disbursements incurred and only up to the date of the Calderbank offer. There should be no allowance for fees claimed by Zhang, which are in essence quasi-legal fees.

21 The allowable disbursements up to the date of the Calderbank offer (excluding disbursements relating to the subpoena application) amount to $1,729.00 made up of the following items:

08/05/2024: Interpreter service fee for directions hearing

22 Ma was successful in his appeal. The starting point is that costs follow the event.

23 The 23 July 2024 letter is relevant to the question of costs for the following reasons.

24 First, it was sent early in the proceeding before most of the work required by the appeal was done.

25 Second, the Calderbank offer was open to be accepted for seven days. The terms of the offer are not complex. Ma was already aware of the amounts of damages and costs set out in the letter. I conclude that the period of seven days was sufficient for Ma to consider and respond to the offer.

26 Third, the compromise offered by Ashraff was substantial. Ashraff effectively offered to give up his claim and costs and to pay the full amount of the damages claimed by Ma. I reject Ma's submission that the Calderbank offer 'was made in bad faith' because it was 'a coercive and intimidating tactic designed to deter [Ma] from pursuing the truth'. The offer was clearly a genuine and appropriate attempt to resolve the real issues in dispute in the proceeding.

27 Fourth, when the offer was made, Ma was in a difficult position in the litigation. His claim could have failed at the appeal stage or at a re-hearing in the Magistrates' Court. This reinforced the reasonableness of the offer.

29 Sixth, Ashraff foreshadowed that he would seek to rely on the offer in relation to costs.

30 The documents filed by Ma on the appeal contained extensive allegations of fraud, bias and misconduct. There was no proper basis for these allegations and they should not have been made. I accept that the impugned allegations, many of which are in documents apparently authored by Zhong, made Ashraff's task of responding to the appeal more difficult and time consuming.

31 There are no grounds to award Ma the costs of work done by Zhong. Zhong is not a legal practitioner. There is no evidence of a contract with Zhong beyond Ma's assertion that he 'sought and engaged the clerical services of [Zhong] on a casual employment basis, with compensation to be provided at an hourly rate consistent with industry standards'. This evidence does not satisfy me that Ma has paid or is contractually obliged to pay Zhong the amounts set out in his affidavit. More fundamentally, the amounts claimed are not in the nature of out-of-pocket expenses of the sort recoverable by a self-represented litigant. Zhong was the author of many of the extensive submissions and affidavits on which Ma relied. In the 18 August submissions, Zhong said that Ma relied on his 'support for the preparation of all documents and legal arguments'. Ma submitted that by his support, Zhong had 'demonstrated his professional competence commensurate with a qualified legal practitioner'. The amounts claimed by Zhong are in the nature of quasi-legal fees. The law is clear that a self-represented litigant cannot recover costs for the time of other persons who are not legal practitioners but who have assisted in preparing the self-represented litigant's case.[9] Finally, the matters set out in the preceding paragraph weigh against allowing any part of the Zhong fees.

32 I conclude that there should be no order for costs of the appeal. I regard that costs outcome as being generous to Ma.

[1] Jun Ma v Mohamed Ashraff (Magistrates' Court of Victoria, Magistrate Thomas, 5 March 2024).

[2] Calderbank v Calderbank [1975] 3 WLR 586.

[3] Supreme Court Act 1986 (Vic) s 24.

[4] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

[5] McKechnie v Ma'a [2024] VSC 768, [24]-[25].

[6] Aljade v OCBC [2004] VSC 351 ('Aljade').

[7] Hazeldene's Chicken Farm Pty Ltd v WorkCover Authority (Vic) (No 2) (2005) 13 VR 435, [19] ('Hazeldene'); quoting Aljade (n 6) [75].

[9] Hoe v Lennox [2020] VSC 262, [26].