George v Fletcher [2010] FCAFC 71 | Case summary

REASONS FOR JUDGMENT 1 On 28 May 2010 the Court allowed in part an appeal by Ms George against a judgment given in the Federal Magistrates Court in relation to whether certain property did or did not form part of her bankrupt estate: George v Fletcher (Trustee) [2010] FCAFC 53 (the principal judgment). These reasons for judgment should be read in conjunction with the principal judgment. For the purposes of continuity we have used like abbreviations in these reasons to those in the principal judgment. 2 Though, as is evident from the principal judgment, we differed as to whether Ms George's appeal should be allowed in part, we are unanimous as to how, in light of the orders made by the Court, costs should be determined. 3 The effect of the principal judgment was to send back, to the Federal Magistrates Court, for trial, the issue as to whether what was termed the Moggill property did or did not form part of Ms George's bankrupt estate. The majority (Ryan and Logan JJ) signified (at [94]) in their reasons for judgment a provisional view that the bankruptcy trustee and the other respondent parties should be regarded as having substantially failed in the appeal such that there should be no order as to costs. Out of an abundance of caution, the majority signified a disposition to permit the parties to make written submissions within seven days of the order disposing of the appeal. In contrast, for reasons set out in his separate, dissenting reasons for judgment, Marshall J would have dismissed Ms George's appeal in its entirety, ordering Ms George to pay the respondents' costs. The orders made by the Court reflected the majority view and so allowed the parties seven days to make submissions with respect to costs. 4 Some but not all of the parties have taken up the offer extended by the Court. The trustee is evidently content with the making of a costs order in the terms provisionally expressed by the majority and so did not file any submissions. Neither did Ms George's sister, the fifth respondent, who had not taken an active part in the hearing of the appeal. 5 The second, third and fourth respondents, respectively, DPIPL and Dr Ironside on the one hand and the Bank on the other, filed like submissions in relation to a claim Ms George made for costs. Each submitted that Ms George, as a litigant in person, was not entitled to any order for costs. Each further submitted that Ms George's conduct on the hearing of the appeal had been querulous and that her submissions, written and oral were often unintelligible. 6 The Bank further submitted that its costs should be costs in the cause. The submission was made that the Bank had only a limited role in the proceedings and had got caught up in respect of other issues concerning title to chattels. That is true, but the Bank did take an active role in relation to so much of the appeal as related to the Moggill property. On issues relating to that property the Bank, like the other respondents, failed. It is not entitled to an order that its costs be costs in the cause. 7 Ms George sought an order for costs in her favour. She claimed that she was "at the time of the appeal a fully registered ADR practitioner with the Queensland Law Society and as such should be treated like any other legal practitioner registered with the Queensland Law Society who seeks costs in their favour". She appended to her written submission a copy of a certificate issued under the hand of the current President of the Queensland Law Society which attested that she, "has successfully met the requirements prescribed under the Australian National Mediator Standards and is recognised as a Nationally Accredited Mediator by Queensland Law Society Inc". The accreditation is stated to be valid from 1 February 2010 until 31 January 2012. 8 Though Ms George's apparent holding of the accreditation stated in the certificate was not verified by her by affidavit, we shall assume in her favour that she is indeed so accredited. 9 Part of the claim made by Ms George in respect of costs was premised upon her perception that her accreditation as a mediator made her a legal practitioner. On that premise she sought costs on the basis that she had lost income from her practice as a mediator in the course of preparing submissions for the appeal, filing documents and otherwise attending at the registry and in appearing to present oral argument. She stated that her practice had "suffered a loss of $20,000 projected income per week" for every week spent on such tasks. 10 Another part of Ms George's claim for costs arose from a desire on her part to reimburse the Court for costs incurred by the copying, by the registry staff, of the many documents that came to be included in the appeal books. There had been an impasse before the District Registrar between Ms George and the respondents when it came to settling the index as to what was and was not necessary for inclusion in the appeal books. It suffices to note that Ms George took a considerably broader view on this subject than the respondents, seeking the inclusion of documents that extended even beyond the tangentially relevant. In the particular and peculiar circumstances obtaining, and in order for the appeal to be heard in the August 2009 sittings as listed, a Deputy District Registrar had directed the preparation by the registry of books which included materials which Ms George, though not the respondents, claimed were relevant. 11 The Court's power to award costs is to be found in s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). 12 Subject to exceptions not presently relevant, that section confers a broad, general discretion in respect of the awarding of costs both in the original jurisdiction and on appeal. Though broad, the discretion is one which must be exercised judicially, not whimsically or idiosyncratically, which will ordinarily mean that it will be exercised to the end that costs follow the event. 13 Where, as in the present appeal, there are multiple issues in respect of not all of which an appellant succeeds, the extent of that success and failure will necessarily have to be considered in determining how costs ought to be awarded. In the principal judgment, the majority did just that in expressing the provisional view that the respondents ought to be regarded as having substantially failed. In other words, though Ms George's appeal failed in respect of the horse and the land cruiser, the time spent on the appeal in respect of the consideration of whether summary judgment in favour of the trustee in respect of these chattels should have been given in the Federal Magistrates Court was so relatively minor in comparison with that spent in respect of the Moggill property that it did not warrant the making of any order for costs of any kind in favour of any respondent. 14 Though Ms George has been accredited as a mediator, that does not make her a legal practitioner. She has not introduced any evidence that would suggest that she has been admitted to practise as a legal practitioner in any Australian jurisdiction or that she holds a current practising certificate entitling her to practise as a barrister, solicitor or both in any such jurisdiction. Much less has she introduced any evidence that her name appears on the Register of Practitioners kept by the Chief Executive Officer and Principal Registrar of the High Court of Australia pursuant to s 55C of the Judiciary Act 1903 (Cth) (Judiciary Act). Entitlement to practise as a barrister or solicitor or both before this Court is dependent upon the entry of the name of the practitioner concerned on that roll: Judiciary Act, s 55B(1). 15 The power to award costs conferred by s 43 of the Federal Court of Australia Act does not extend to the awarding to a litigant who is not a legal practitioner of any amount of costs in respect of time spent in the preparation of his or her case or in the presentation of that case in court: Cachia v Hanes (1994) 179 CLR 403. Insofar as the judgment of the Full Court in Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 39 FCR 288 stands for the proposition that a non-practitioner party can recover an amount in respect of earnings shown to have been lost while preparing or presenting his or her case, that case is inconsistent with Cachia v Hanes and should no longer be followed. Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) was decided after Cachia v Hanes had been decided at intermediate appellate level but before it had been authoritatively determined by the High Court as the ultimate court of appeal. 16 Because Ms George is not a legal practitioner entitled to appear before this Court, it is unnecessary to consider whether, having regard to London Scottish Benefit Society v Chorley (1884) 13 QBD 872, she should, exceptionally, and perhaps questionably (Cachia v Hanes at 412-414), be allowed any amount in respect of legal professional costs in respect of the preparation for and presentation of her appeal. 17 It would not be inconsistent with what was said in Cachia v Hanes as to the inability of a litigant in person to be recompensed for lost time and trouble to allow Ms George an amount by way of out of pocket expenses in respect of a filing fee or costs incurred by her in copying the appeal books. As to the former, she was a bankrupt at the time of filing the initial application for leave to appeal and remains so. A search of the court file discloses that she applied for and was granted fee exemption. 18 As Ms George notes in her submission, the copying costs associated with the preparation of the appeal books were incurred by the Court, not by her. That was but an illustration of the continuing applicability of the following observation made by Mason CJ, Brennan, Deane, Dawson and McHugh JJ in Cachia v Hanes at 415, "All too frequently the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself." Those costs were necessarily incurred in the administration of the judicial power of the Commonwealth. They must lie where they fall. They are not Ms George's to claim. 19 Ms George has not established any entitlement to out of pocket expenses. She is not, for the reasons given above, otherwise entitled to any order for costs of the appeal. Costs in respect of the application for leave to appeal were reserved but there is no reason to deal with these in any different manner to those of the appeal. 20 For these reasons, there should be no order as to costs in respect of the appeal and of the application for leave to appeal. 21 In these circumstances, it is unnecessary to consider the merits or otherwise of Ms George's submission that any order for costs in her favour should in some way not constitute after acquired property forming part of her bankrupt estate for the purposes of the Bankruptcy Act 1966 (Cth). 22 Finally, lest it be thought to have past unnoticed by us, we record that we have noted and accept Ms George's apology in her submission in respect of her querulous conduct on the hearing of the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Marshall & Logan.

George v Fletcher

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