Freitag & anor v Bruderle & anor [2012] QSC 207

SK Freitag for himself and the second plaintiff/respondent

D Bruderle for himself and the second respondent/applicant

HIS HONOUR: The applicant, the successful first defendant in the hearing of the claim and subsequent appeal, makes application for orders requiring the respondent to pay certain costs. I note in passing the application does not name the respondent which must be one or both of the plaintiffs, Svargo Klaus Freitag and Svargo Klaus Freitag as administrator of the estate Gunter Muller in the failed action. That technicality is of no moment given the reasons that I will in due course give as to the ultimate outcome of the application.

In relation to the failed action I note the Court of Appeal's reasons said there should be no costs, so this application must be taken to relate only to proceedings in this Court which culminated in the orders of Jones J, although I note it also seeks costs associated with the bringing of the present application as well. Again, for the reasons I will give, the outcome for costs in respect of the current application as well as the outcome for costs in respect of the orders of Justice Jones is inevitably identical.

The orders of Justice Jones made on 31 May 2011 in orders 1 and 2 involve substantial orders going to the outcome of the action. Then his Honour ordered:

"3. The plaintiff to pay the defendants' costs to be assessed on the standard basis, such order to be stayed until 21 July 2011 if either party, by submissions in writing, seek a different order.

1. The parties have liberty to apply on the question of costs upon the giving of three business days notice to the other party."

It appears there were submissions in writing filed on 21 July 2011 purporting to seek a different order, although they went to an issue about compensation, the upshot of which is of no immediate concern now. It does have the effect of leaving some ambiguity over the effect of orders 3 and 4 as they may relate to the question of costs currently. Both parties though appear to have approached argument in this matter on the basis that it is appropriate for this Court rather than a cost assessor to determine the question of costs which is being argued. I now do so.

The costs now sought are $4,751.55 plus $144.30 additional out of pocket expenses. The amount of $4,751.55 consists of photocopying fees, transcript fees, postal fees, company and other search fees, travel expenses, expert witness expenses, and a facsimile fee. The amount of $144.30 consists of further photocopying fees and travel expenses apparently related directly to the pursuit of this application. None of the fees claimed are fees imposed by the Court or Registry. That is, none of them come within the narrow and only class of costs found to be allowable in respect of self-represented litigants in the recent Court of Appeal decision of Merrin v. Commissioner of Police; Merrin & Anor v. Commissioner of Police [2012] QCA 181.

That case related to costs under the Justices Act in respect of proceedings in the Magistrates Court although the principles discussed are of broader application. The lead judgment of North J with whom the balance of the Court agreed noted some divergence in past decisions of the Court as to the extent of costs allowable in respect of self-represented litigants. It discussed the tension between a broad approach taken in a former case, ironically also involving Mr Merrin, Commissioner of Police Service v Merrin [2012] QCA 480, and in particular the reasons of MacPherson JA, in contrast to Worchild v. Petersen [2008] QCA 28. It identified the apparent consistency of the Worchild decision and the inconsistency of the former Merrin decision with the decision of the High Court in Cachia v. Hanes & Anor. [1994] HCA 14; [1994] 179 CLR 403. In Cachia v Hanes it was observed at 410, 411:

"It has not been doubted since 1278 when the statute of Gloucester introduced the notion of costs to the common law that costs are awarded by way of indemnity (or more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the statute of Gloucester the costs which might be awarded to a litigant extended to the legal costs of the suit 'but not to the costs and expenses of his travel and loss of time'."

In modern parlance the legal costs of the suit appear to be regarded as, to adopt the language of McMurdo P in Merrin v. Commissioner of Police; Merrin & Anor v. Commissioner of Police [2012] QCA 181 at paragraph 2, "the costs of filing and other Court fees".

Unless there is a basis to distinguish the reasoning of the Court of Appeal in the recent decision of Merrin and identify a permissible broader power to award costs in the Supreme Court then the present application must fail.

Uniform Civil Procedure Rule 680 provides a party cannot recover any costs of a proceeding other than under the Rules or an order of the Court. In this context it is not to the point that Jones J ordered the plaintiff to pay the defendant's costs in as much as those costs could only have been costs his Honour had the power to order at law. His Honour was of course not to know whether or not the defendant actually had allowable costs, that being a matter for the ensuing assessment.

Uniform Civil Procedure Rules 691(1) provides:

"For assessing costs on the standard basis an Australian lawyer is entitled to charge and be allowed the costs under the scales of costs for work done for or in a proceeding in the Court."

That provision is obviously of no help to the applicant who was self-represented.

The Uniform Civil Procedure Rules do not refer to any entitlement a self-represented person has in a similar vein. Further, there is nothing in the relevant scale of costs schedule in the Rules which would suggest a contrary interpretation.

On the face of it the Rules do not even contemplate that a self-represented litigant's costs of filing and other Court fees are allowable. That is, the Uniform Civil Procedure Rules do not suggest a permissible power broader than that identified in the recent decision of Merrin, and arguably suggests an even more limited approach ought be taken.

However, section 221 of the Supreme Court Act 1995 also provides a power to award costs, namely:

"The Supreme Court shall have power to award costs in all cases brought before it and not provided for otherwise than by this section."

The arguably exclusory language of Uniform Civil Procedure Rule 680, on one view, grounds an argument that section 221 ought not be considered on the basis that the Uniform Civil Procedure Rules cover the field in relation to the matter before me. I am disinclined to that narrow approach and am fortified in that view by the Court of Appeal's reasoning in Sochorova v. The Commonwealth [2012] QCA 152 where the Court of Appeal's reasoning impliedly contemplated that the Rules did not exclude the application of section 221 of the Supreme Court Act 1995. What then is meant by costs in section 221?

In my view, it is the meaning ordinarily accorded to that word in the context of the aforementioned quote from Cachia v. Haines.

I am again fortified in taking that view by the observation, in Sochorova v. The Commonwealth, of Wilson J with whom Muir and Fraser, Justices of Appeal agreed, at paragraph 16, that:

"The term 'costs' includes fees paid to a lawyer for professional skill and time spent in the preparation and presentation of the case and also disbursements such as Court filing fees."

Her Honour cited Potter v. Dickinson [1905] HCA 26; [1905] 2 CLR 668 in support of that interpretation and then went on to observe:

"A successful party who is not legally represented...may recover disbursements."

As discussed in the recent Court of Appeal decision of Merrin v. The Commissioner of Police the term "disbursements" is ordinarily regarded as meaning a payment made on behalf of a client by a lawyer to a third party. Obviously, in the matter of Sochorova, Wilson J was giving it a somewhat broader meaning to encompass, for example, Court filing fees, regardless of whether those fees were claimed by a self-represented litigant or not.

To the extent that there is then some inconsistency in the aforementioned observations in Sochorova with the Court of Appeal's recent decision in Merrin, they appear to be inconsequential for present purposes.

Even adopting the observations in Sochorova more favourable to the present applicant, he is not entitled in a Supreme Court proceeding as a self-represented litigant to a category of costs under section 221 any broader than that which was contemplated in Merrin, namely the costs of filing and other Court fees.

I reach that conclusion on the basis that costs as referred to in section 221 carry the ordinary meaning discussed above. I regard the recent decision of Merrin v. The Commissioner of Police as making it plain that the reference to the legal costs of the suit in the aforementioned quote in Cachia v. Haines means the costs of filing and other Court fees and does not extend to other expenses incurred at the choice of a self-represented litigant. The rational distinction between the latter category and the costs of filing and other Court fees is that the costs of filing and other Court fees are objectively required and there can be no issue as to their appropriate quantum.

It follows that because in the present matter none of the costs claimed are the costs of filing and other Court fees, the application must fail.

I make no particular criticism of the applicant for having pursued the application in as much as prior to the recent decision of the Court of Appeal in Merrin v. The Commissioner of Police there was arguably a basis to contend for a broader category of allowable costs for a self-represented litigant.

There is also before me an application on the part of the respondent that I dismiss each of the orders sought by the applicant. To the extent that it is simply an unnecessary application it is unnecessary to delve further into the reasons why I need not deal with it. It is, in effect, an application that was not required to be brought so far as those potential orders were concerned because the only obvious potential consequence of the primary application was that it would either succeed or be dismissed. It is unnecessary to bring an application seeking to dismiss an application which has been brought for that is something which can occur in the normal course without the need for a separate application. I therefore make no orders regarding the first three paragraphs of the respondent's cross-application.

The final paragraph of the respondent's cross-application seeks an order "that the Court makes the strongest possible order in its power to address the issue of the first defendant in the Supreme Court case 165/09 repeatedly and knowingly stating untrue facts under oath in his affidavits to this Court." The respondent contends in support of his argument for this order, amongst other things, that it would be a sad day if the Court acted on affidavits defaming persons and containing other falsehoods.

There is a difference between affidavits containing falsehoods being filed and the Court accepting their content as accurate. It is in the nature of litigation that opposing parties depose to widely differing accounts of the truth. It is an unhappy consequence of litigation that one party may be affronted or offended by what another says. The question though, is whether I ought make "the strongest possible order" in my power to address what are contended to be repeatedly and knowingly stated untrue facts. No particular power to make an order for the kind sought at this stage of the proceeding has been identified.

Finality of litigation is an important consideration. The substance of this litigation was resolved before Jones J. The affidavits filed in relation to the applications I have just discussed contained from both sides a host of irrelevant material, at least some of which seemed to relitigate some of the issues that might once potentially have been the subject of debate in the primary proceeding. The primary proceeding is over. I have no intention of being drawn back into issues connected with it. I have no intention of being drawn into the correctness or otherwise of the content of irrelevant material in either side's affidavits in this application.

It is plain that the application ultimately fell to be resolved based on straightforward application of legal principle without the need to have regard to the truthfulness or otherwise of what appears to me, in any event, to be irrelevant content in some of the affidavits filed. Giving full force to the principle of finality of litigation, I therefore decline to make any such order of the kind sought in paragraph four of the respondent's application.

Both the application and the cross-application are dismissed.

In all of the circumstances, in respect of both applications, there is no order as to costs.