Contempt of court - Statutory contempts - Use of name, title or description implying or tending to the belief person is a legal practitioner - Contraventions of Legal Practice Act 2003 (WA) s 128(b) read with s 250 - Punishment for statutory contempts - Principles to be applied - Fine instead of committal - Use of Sentencing Act provisions to guide discretion - Provision of time to pay fine

Contempt of court - Statutory contempts - Costs including reserved costs - Costs for litigant in person

Legal Practice Act 2003 (WA), s 4, s 123(1), s 128(b), s 250

Legal Practitioners Act 1893 (WA), s 76, s 77, s 80, s 81

Sentencing Act 1995 (WA), s 3, s 6, s 39, s 53, s 54, s 59

Respondent fined for four contempts with time to pay and liberty to apply with respect to time to pay

Costs including reserved costs for applicant with exceptions

1 This is my determination as to the punishment to be imposed for certain statutory contempts and as to costs. This determination follows my judgment in Legal Practice Board v Tee [2008] WASC 206. In Tee I determined the respondent was guilty of a number of contraventions of Legal Practice Act 2003 (WA) (2003 Act) s 128(b) and thus of statutory contempts in the terms of s 250.

2 I first provide the background to this determination as to punishment. I then review the principles I should follow in exercising the power of the court to punish for statutory contempt under 2003 Act s 250, before I consider each of the matters those principles indicate I should address. In doing the latter, I consider the applicant's submissions as to penalty. I then turn to consider the applicant's submissions as to costs. The final section of this determination is my conclusions and summary of the matters final orders should or might address.

3 I received no written submissions from the respondent. Further, as has been the case in the most recent hearings in these proceedings, the respondent did not appear before me in the hearing on 21 November 2008. I am satisfied that the respondent was properly notified of that hearing: see the affidavits of service of Deidre Anne Solomon sworn 13 October 2008 and 12 November 2008.

4 In Tee I determined that the applicant in proceedings under 2003 Act s 250 had established to the criminal standard that the respondent had committed four contraventions of 2003 Act s 128(b). However, the applicant had failed to establish a fifth alleged contravention of the latter provision.

5 The two provisions of the 2003 Act read at all material times as follows:

250. Contempt of the Supreme Court

Without limiting the operation of other provisions of this Act, a person who contravenes -

(a) the terms of this Act, or any provision of or obligation imposed under this Act; or

(b) an order of the Complaints Committee,

is guilty of a contempt of the Supreme Court and may be dealt with accordingly by the Supreme Court or a Judge in Chambers on the motion of the Complaints Committee or the Board.

1. Unqualified person making false representations to be practitioner

A natural person who is not a legal practitioner must not -

...

(b) advertise or use any name, title, addition, or description implying or tending to the belief that the person is a legal practitioner or is recognised at law as a legal practitioner.

6 It was not in question in the proceedings before me in CIV 2100 of 2007 and CIV 1377 of 2008 that the respondent was not a 'legal practitioner' within the 2003 Act.

7 In Tee [21] I described the procedure for statutory contempt under 2003 Act s 250, referring to Heedes v Legal Practice Board [2005] WASCA 166, as follows:

The procedure for statutory contempt of the sort in the 2003 Act s 250 is civil, notwithstanding that the procedure is for an offence and that the standard of proof is the criminal one of beyond a reasonable doubt: Heedes ... [54] (Roberts-Smith JA), [1] (Owen JA agreeing) and [2] (Wheeler JA agreeing). Heedes was itself a proceeding under the 2003 Act s 250 for a contravention of s 128.

8 I should note that, while in Heedes [5] it is stated '[a]lthough the body of the originating motion did not say so, the contempt was charged pursuant to s 128 and s 250 of the [2003 Act]', the summary of the allegations in that body set out in Heedes [4] would appear to indicate that the contempt was rather charged pursuant to another provision of the 2003 Act. That provision was s 123(1), which with s 4 reads as follows:

123. Prohibition on unqualified legal practice

(1) A person must not engage in legal practice unless the person is a certificated practitioner.

Penalty: $10 000.

4. Meaning of 'engage in legal practice'

A person engages in legal practice if the person directly or indirectly -

(a) whether in the name of that person or that of any other person -

(i) sues out any writ or process;

(ii) commences, carries on, solicits, defends, or appears, in any action, suit, or other proceedings in any court of civil or criminal jurisdiction in this State; or

(iii) acts as a barrister or solicitor of the Supreme Court in any cause, matter or suit, information or complaint, civil or criminal, or under any commission for the examination in this State of witnesses, or others, issued by any court in or out of this State;

(a) performs or carries out or is engaged in any work in connection with the administration of law; or

(b) draws or prepares any deed, instrument, or writing relating to or in any manner dealing with or affecting

(i) real or personal estate or any interest in real or personal estate; or

(ii) any proceedings at law, civil or criminal, or in equity.

9 I return to 2003 Act s 123(1) at several points later in this determination.

10 The circumstances of the four contraventions that in Tee I determined had been established were these.

11 The first such contravention was committed on a date after 3 February 2007 and before 12 February 2007 (the early February 2007 contravention). Its circumstances as described in the relevant originating process were (from Tee [11], part) as follows:

The respondent attended the CitiWatch Office at the Perth Train Station and there met Darren Harris. The respondent said to Mr Harris that he was a lawyer. The respondent went on to say that he was representing a client and he had requested some video surveillance footage from the City of Perth. The respondent said that he was concerned that the footage might not have been saved. The respondent said the footage was important because it was required as evidence in his client's case and he wanted to confirm that the footage had been put aside for him.

12 As at 4 October 2007 Mr Harris was a surveillance officer employed by the City of Perth.

13 The second such contravention was committed on or about 12 February 2007 or shortly thereafter (the mid-February 2007 contravention). Its circumstances as described in the relevant originating process were (from Tee [13], part) as follows:

The respondent attended the CitiWatch Office at the Perth Train Station and there met Darren Harris. The respondent said to Mr Harris that he was a lawyer. Mr Harris said 'I know. We met before'. The respondent replied 'Oh yes'. The respondent said that he had a witness summons for Mr Steven Cummings to produce to the Magistrates Court the tapes of the footage that he had requested. Mr Harris said that he could give the summons to Mr Cummings and the respondent handed Mr Harris the summons.

14 The circumstances of the third such contravention, committed after 12 February 2007 but before 1 March 2007 (the contravention of later in February 2007), were, as described in the relevant originating process (from Tee [17], part), as follows:

The respondent attended the CitiWatch Office at the Perth Train Station and there met Darren Harris. The respondent told Mr Harris that he was a lawyer and said that he was concerned that the tapes he had summonsed Mr Cummings to produce might not be duly produced. Mr Harris told the respondent that as long as the tapes were paid for prior to their delivery date, there would not be any problem with Mr Cummings producing them.

15 The fourth such contravention was committed on 20 July 2007 (the contravention of 20 July 2007). Its circumstances were (from Tee [19], part) as follows:

the respondent ...:

(a) said he was a lawyer from 'Wittingham & Associates' to Terence Bradley; and

(b) replied 'yes' when asked by Terence Bradley if he was a lawyer, after the respondent said that he would complete the necessary paperwork relating to his request for video footage held by the City of Perth ...

16 As at 30 October 2007 Mr Bradley was a surveillance officer employed by the City of Perth.

17 I will return to certain evidence as to the circumstances of the alleged contravention which in Tee I determined the applicant had failed to establish (the contravention by the witness summons of 12 February 2007). I will consider whether or not that evidence goes to increase the culpability of the respondent or decrease that culpability or increase or decrease the extent to which the respondent should be punished.

The principles I should follow in punishing for the statutory contempts

18 The following principles appear to be established by the authorities the applicant cited to me or otherwise to emerge from the material I will refer to.

19 While Sentencing Act 1995 (WA) does not apply to punishment for contempt of court, whether common law or statutory (see s 3(3)(a)), it is appropriate the court should 'give consideration to sentencing principles in the Sentencing Act': see Kennedy v Lovell [2002] WASCA 226 [6] (Malcolm CJ), [48] (Murray J) and [55] (Steytler J), referred to in Legal Practice Board v Frichot [2006] WASC 230 (S2) [38] and [46] (Hasluck J: the latter paragraph in his Honour's judgment is the source of the quotation). In Kennedy there were references in particular to two sets of provisions in the Sentencing Act, being s 6 (see Kennedy [6]), and s 53(1) and (2), s 54(1) and s 59(1) (see Kennedy [40] - [43]).

20 Sentencing Act s 6, s 53, s 54 and s 59 read as follows:

6. Principles of sentencing

(1) A sentence imposed on an offender must be commensurate with the seriousness of the offence.

(2) The seriousness of an offence must be determined by taking into account -

(a) the statutory penalty for the offence;

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

(c) any aggravating factors; and

(d) any mitigating factors.

(3) Subsection (1) does not prevent the reduction of a sentence because of -

(a) any mitigating factors; or

(b) any rule of law as to the totality of sentences.

(4) A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

(5) A court sentencing an offender must take into account any relevant guidelines in a guideline judgment given under section 143.

(6) For the purpose of subsection (4), an order under section 58 that a person be imprisoned is not a sentence of imprisonment.

53. Considerations when imposing a fine

(1) Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account -

(a) the means of the offender; and

(b) the extent to which payment of the fine will burden the offender.

(2) A court may fine an offender even though it has been unable to find out about the matters in subsection (1).

54. One fine for 2 or more offences

(1) A court sentencing an offender for 2 or more offences that -

(a) are founded on the same facts; or

(b) form, or are part of, a series of offences of the same or a similar kind,

may impose a single fine for all of the offences.

59. Imprisonment if fine is not paid

(1) If a superior court fines an offender for an offence it may order that if the offender does not pay the fine before a date set by the court the offender is to be imprisoned until the offender's liability to pay the fine is discharged -

(a) by payment of the whole of the fine;

(b) by the offender serving the whole of the period of imprisonment determined under subsection (3), or a shorter period set by the court; or

(c) by a combination of payment of part of the fine and the offender serving part of that period of imprisonment.

21 In Kennedy the offences were ones under Royal Commission Act 1968 (WA) s 13 (read with s 10) and s 14, for none of which was a statutory penalty provided, but for which under s 13 and s 14 the offender 'may be dealt with on the motion of the Attorney General as if he were in contempt of the Supreme Court'. In the case before me, however, 2003 Act s 128(b) provides a statutory penalty. But the effect of 2003 Act s 250 appears to be that when (as here) the proceedings are under that provision the matter of punishment for the statutory contempt is 'at large'. That punishment includes (see Rules of the Supreme Court 1971 (WA) O 55 r 7 and r 8) the possibility of committal to prison: see Frichot (S2) [30] (source of quotation) and [44], [45].

22 I should note that Frichot (S2) was itself a proceeding for statutory contempt under the predecessor to the 2003 Act s 250, Legal Practitioners Act 1893 (WA) (the 1893 Act) s 81, for contravention of 1893 Act s 76 and s 77, provisions which were the predecessors of 2003 Act s 123 read with s 4. Unlike 2003 Act s 123 (or s 128(b)) neither 1893 Act s 76 nor 1893 Act s 77, at least as they were for the purposes of Frichot (S2), provided for a statutory penalty in the form of a fine: see on the history of s 77 in that respect Legal Practice Board v Adams [2001] WASC 78 [41], [42] (Hasluck J). However, the views expressed by Hasluck J in Frichot (S2) [30] he stated applied to 2003 Act s 250, in my respectful view correctly so.

23 However, the options for punishment for contempt are in my view restricted to a fine or committal to prison, which includes a power to suspend such a committal: see O 55 r 7 and r 8; compare Sentencing Act s 39.

24 In determining on the option to be chosen and the matter of the extent of the punishment to be imposed in a case like this one, the court should take account (see Kennedy [14] and [16] - [39]; and Frichot (S2) [42], [43]) of the following factors from Wood v Staunton (No 5) (1995) 86 A Crim R 183, 185 (Dunford J), described there as matters gathered from the authorities his Honour reviewed for the purpose which 'include':

1. the seriousness of the contempt proved;
2. whether the contemnor was aware of the consequences to himself of what he did;
3. the actual consequences of the contempt on the relevant trial or inquiry;
4. whether the contempt was committed in the context of serious crime;
5. the reason for the contempt;
6. whether the contemnor has received any benefit by indicating an intention to give evidence;
7. whether there has been any apology or public expression of contrition;
8. the character and antecedents of the contemnor;
9. general and personal deterrence; and
10. denunciation of the contempt.

25 The matters so listed in Wood in my view subsume virtually all of those made relevant by 'conventional sentencing principles' (see Frichot (S2) [81], source of quotation), including separate consideration of each contravention, as well as the totality principle. The latter principle requires the court to take notice of 'the effective aggregate of the various individual sentences imposed in respect of a series of offences' (Frichot (S2) [81], a case where fines were imposed). I do not consider there are any matters relevant for my purposes not subsumed by the Wood listing.

26 However, Wood was a case of punishment for contempt of the Royal Commission into Police Corruption for refusal to answer questions. In my view that context, which was similar to that of Kennedy, accounts for the matters numbered 3, 4 and 6 in the above list which are not relevant in the context of a case of the sort before me. Frichot (S2) does not indicate otherwise.

27 Further, in my view I should take account of the statutory penalty in 2003 Act s 128(b) relative to that in 2003 Act s 123(1). While I do not consider that the amount of $2,500 in the former limits the amount of the fine I might impose as a punishment for a particular contempt under 2003 Act s 250 by contravention of s 128(b), I should note that that amount is significantly less than the corresponding amount of $10,000 for contravention of s 123(1). I consider that disparity indicates the legislative view of the relative degrees of seriousness of the two offences. In my view I should bear this in mind together with the other matters I will refer to in considering the punishments in the authorities for statutory contempt cited to me by the applicant.

28 Those authorities are all, with one exception, concerned with punishment for statutory contempt in respect of contraventions of 1893 Act s 76 or s 77 or both: Legal Practice Board v Ridah [2004] WASC 263 (immediate imprisonment for 20 months); Legal Practice Board v Mullally [2003] WASC 225 (fine of $8,000); Frichot (S2) (fines of $5,000 and $2,000); and Adams (fine of $800).

29 The exception is Ridah, where the contempt which was found as alleged included, in addition to conduct described in terms of language in 1893 Act s 76(1) and s 77(1) (see Ridah [1], McKechnie J), conduct described in the language of 1893 Act s 80. That last provision corresponded to 2003 Act s 128(b). However, there was no separate punishment imposed in Ridah in respect of the latter conduct.

30 I turn now to a consideration of the relevant matters in Wood. I will be proceeding in that respect in the manner adopted in Kennedy [16] - [39].

31 The applicant acknowledged that it was possible to imagine worse cases than those making up the present case, where the representations were not in conjunction with the undertaking of legal practice (see Ridah); and where there was no evidence the representations had adversely affected the interests of third parties or the interests or activities of those to whom the representations were made. In the latter respect, I note that over the course of events represented by the early February 2007 contravention, the mid-February 2007 contravention and the contravention of later in February 2007, the person to whom the representations were made, Mr Harris, had developed a suspicion the respondent's representations were false: see Tee [46]. I also note that that there was nothing but the slight evidence I return to below that the respondent had gained or stood to gain a particular benefit from the representations.

32 I took this acknowledgment by the applicant to underlie the applicant's submission that a fine not committal was appropriate for each contravention in this case. I agree, and would also refer to my earlier comment as to the seriousness of the offence in s 128(b) relative to that in s 123(1).

33 Also in relation to the question of committal, and indeed punishment for the statutory contempts more generally, I further note the evidence as to the respondent's qualifications in law or legally related matters which was represented by the description of those qualifications in the contents of the witness summons which in Tee I considered in relation to the contravention by the witness summons of 12 February 2007. See for that description Tee [95].

34 Such qualifications might on one view be seen to indicate the respondent was a person who could be expected to have an understanding of the status of a 'legal practitioner' for the purposes of 2003 Act s 128(b) as well as his liability to punishment for contempt for contravening that prohibition. This in turn might be seen to be relevant to the present matter, the seriousness of the contempt, or the next, the respondent's awareness of the seriousness of the contempt. See for the relevance of an understanding that the law has been breached Mullally [10], [14] (Johnson J).

35 Alternatively, such qualification might, on another view, be seen to indicate that the respondent might have had some reason to consider he could describe himself as he did, with the same relevance.

36 However, as there was no evidence before me at any point in these proceedings as to what was entailed in obtaining or maintaining those qualifications I do not consider I can draw anything from them for the purposes of punishing the respondent for contempt.

37 However, the applicant also submitted there was here a series of contraventions, not a one-off event, revealing a propensity or desire by the respondent to hold himself out as a lawyer. Reference was made to Mullally which I took to be in particular to [17].

38 However, I note that Mullally concerned a respondent who had acted in the administration of law for a company in respect of a claim for damages by that company. Here I note that although there is a series of discrete representations resulting in the commission of the four contraventions for which the matter of punishment for statutory contempt arises, there is a unity in the conduct, in its timing, form and purpose, which is like that in Mullally. The series of representations were made for the benefit of what appears to be a single client, to obtain the same evidence from the City of Perth, over a time period from early February 2007 to the latter part of July 2007. While I must consider each contravention separately, there is not here evidence of conduct involving a series of clients in different matters for each client: compare Frichot (S2).

39 Further, the respondent appears to have had a desire to benefit (albeit by misguided means) that single client, although I cannot altogether exclude the possibility the client the respondent was acting for was himself. For the relevance of a desire to benefit another as going to mitigate the punishment otherwise to be imposed see Mullally [10].

40 Here, unlike Mullally (see [8]), however, there is no indication of a benefit provided or promised by that client to the respondent by way of return. This is other than what might be taken from the fact of that person being described as a 'client'. Such a person, the applicant submitted, might be expected to have provided or promised a reward for the services of the respondent. However, in my view this is a very slight indication of such benefit: persons in the position of the respondent might be acting pro bono.

41 Considering each contravention separately, but having regard to their aspects as I have done in this section of my determination, I consider I am not able to distinguish between the contraventions in terms of the relative degrees of their seriousness. I thus do not accept the submission for the applicant that the fine for the early February 2007 contravention and for the contravention of 20 July 2007 should in each case be (at $2,000) twice or otherwise different from the amount for the mid February 2007 contravention and for the contravention of later in February 2007 (at $1,000, in each case). I took that submission to be directed at the relative seriousness of the conduct in each case.

42 At the same time, I consider none of the contraventions were of so trivial or insignificant a nature as to warrant only the imposition of an insignificant punishment. The respondent persisted in making the representations he did, over a not insignificant period of time, in a way which indicated he was acting deliberately so as to secure what he sought for his 'client'.

Whether the respondent was aware of the consequences to himself of what he did

43 This matter goes to the awareness of the respondent that his conduct in each case was an offence of the kind that would render him liable to be punished for contempt: see Kennedy [19]. There is a degree of overlap between the present matter and the previous one indicated by my discussion there of what I could take for my purposes from the qualifications of the respondent to which I referred. As there was no other evidence before me from which I could infer such awareness, I consider no such awareness has been made out here.

44 This matter goes to what explanation is offered or could be seen for what the contravener did. Here no such explanation was offered by the respondent: as I have said he did not appear in person or by counsel at the hearings as to liability and punishment. Nor as I have indicated am I in a position to discern such an explanation from the evidence before me as to the respondent's qualifications to which I have referred.

Whether there has been an apology or public expression of contrition

45 This matter goes to matters of mitigation akin to expression of remorse which should be taken into account in criminal sentencings to which the Sentencing Act applies: see Kennedy [30] - [34]. In suitable cases an acceptance of responsibility, particularly one of a sort that facilitates the administration of the contempt proceedings, might appropriately be considered, whether under this head or as a separate matter, if it could not be subsumed under the Wood listing of relevant matters. I note again that that listing was expressed in Wood at 185 as being inclusive only.

46 There is here no indication from the respondent in any of the proceedings in CIV 2100 of 2007 or CIV 1377 of 2008 of any apology, and there has been no expression, public or otherwise, of contrition, nor any acceptance of responsibility. There is thus nothing of a mitigatory character to be said for the respondent on this account.

47 The applicant's submissions included that I should take from the matter under the previous heading and from the respondent's actions in the interlocutory proceedings in this matter which I describe in Tee [24] and [25] that the respondent was neither apologetic nor contrite, and accordingly personal deterrence was a major consideration in determining punishment in this case.

48 However, while I consider there is nothing to indicate there is no need for personal deterrence (and I note again my conclusion above as to the persistent and deliberate character of the contempts here), I do not consider that I have before me sufficient material from which to conclude there is a special need for such deterrence. An absence of an apology or display of contrition in the context of the non-appearance by the respondent I have described does not it seems to me enable me to conclude the respondent is unapologetic or uncontrite. I simply have no evidence on either account. Further, the respondent's actions in the interlocutory proceedings in CIV 2100 of 2007 and CIV 1377 of 2008 to which I will return under Costs below do not in my view take the matter any further.

49 As to general deterrence, there was no submission from the applicant as to any special need for deterring others from engaging in conduct of the kind in this case. I have noted there do not seem to be any other authorities on sentencing for contraventions of the present kind, being ones under 2003 Act s 128(b), considered on their own without contraventions of s 123(1): compare Ridah. However, in my view that is not a matter of any special significance for the purposes of general deterrence.

50 This is a matter which may be expected in many cases to be closely related to the previous matter: see Kennedy [35].

51 No special need to denounce the contempts here was made apparent to me by the applicant's submissions or otherwise.

The character and antecedents of the contemnor

52 This matter appears to subsume the matters typically put forward under a similar heading in a plea in mitigation in a sentencing to which the Sentencing Act applies: see Kennedy [36] - [39].

53 Here I have no plea in mitigation or similar from or for the respondent, and in my view there is no other material from which to arrive at findings, by inference or otherwise, of a kind such a plea might be expected to address.

Conclusions as to punishment for the contempts

54 I have borne in mind all of the matters just reviewed in considering the punishments in this case. I have particularly considered the totality principle, by reference to the unity in the respondent's conduct to which I have previously referred. That unity in conduct in my view warrants a single fine for all four statutory contempts, being those in respect of the early February 2007 contravention, the mid February 2007 contravention, the contravention of later in February 2007 and the contravention of 20 July 2007. See Sentencing Act s 54(1)(b) above, which I here use as a guide to the exercise of my discretion, on which use see Kennedy [46].

55 In my view a fine of $4,000 should be imposed in aggregate for the four contraventions.

56 I have noted that provision might be made for time to pay the fine: see Frichot (S2) [82]. However, I do not have any material from the respondent or otherwise indicating that it would be appropriate to afford him any and if so what time in that regard: compare Frichot (S2) [69], [70]. However, I consider that in all of the circumstances the respondent should have sufficient time to arrange his affairs so as to pay the sum of $4,000. Doing the best I can I set that time at one month, from the date of final orders. At the same time I would make the same provision for the respondent to apply to the court for an extension of time for good cause in respect of the time for payment of the fine as was made in Frichot (S2): see [83] at '8'.

57 Finally under this heading I note that if the court imposes a fine in a case like this one it may also order that if the contemnor does not pay the fine before the date set the contemnor is to be imprisoned until the contemnor's liability is discharged by payment, imprisonment or some combination of the two. See Sentencing Act s 59(1), which the court may use as a guide to the exercise of its discretion, as indicated in Kennedy [43], [44] and [47]. While such orders were made in Kennedy, there is no indication whether or not they were made in Frichot (S2), Mullally or Adams. The applicant in its submissions did not ask for such an order. However, I will hear from the parties as to any need for such an order in this case.

59 The relevant principles appear to be the following.

60 The costs of a successful applicant in proceedings to punish for contempt under 2003 Act s 250 including reserved costs may be ordered against the respondent: see Frichot (S2). I consider this is by reason of the principles applicable to civil proceedings: see O 66 r 1(1).

61 The applicant's submissions called for costs in accordance with this principle, save that no order as to costs should be made in respect of the costs reserved at the interlocutory hearings of 31 March 2008, 4 April 2008 and 16 May 2008. The respondent appeared representing himself at the first two hearings but not at the third. The respondent could (as I will indicate below) be considered to be in the position of a successful party in respect of the subject matter of those two hearings, at which he took positions in respect of the sufficiency of the description of the alleged contempts in the applicant's originating process (see O 55 r 5). In respect of the third hearing, the applicant could be regarded as not having succeeded in maintaining the position it pressed on the court.

62 The approach to costs in the case of a successful litigant in person which I understand the court to follow is set out sufficiently for my purposes in Kendall C and Curthoys J Civil Procedure in Western Australia (at 31 December 2008) [66.19.5], referring to Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, Michael v Monitronix Ltd (Unreported, WASC, Library No 920044, 20 February 1992) and Rowan v Cornwall (No 6) [2002] SASC 234, as follows:

An ordinary litigant in person cannot recover as costs any compensation for time spent by him or her in preparing and conducting his or her case, although he or she may be allowed a witness fee if he or she qualifies for one: Cachia ... at 409, 410, 417; [1994] HCA 14; 120 ALR 385 at 387, 388, 393; [1994] HCA 14; 68 ALJR 374 at 375, 376, 379. The litigant in person is only allowed his or her actual out-of-pocket expenses reasonably incurred. He or she may not be allowed the costs of obtaining legal knowledge, but he or she may be allowed the reasonable expense of preparing written submissions or the reasonable expense necessarily and properly incurred in relation to the litigation of travelling and parking: Michael .... There is no entitlement to the cost of clerical assistance voluntarily provided to the litigant in person by relatives or friends: Rowan ... at [16].

See also Dobree v Hoffman (1996) 18 WAR 36.

63 I consider that the approach the applicant commends for the reserved costs of the three hearings to be in accordance with the approach just described, save to the extent the applicant's approach makes no allowance for any 'actual out-of-pocket expenses reasonably incurred' by the respondent (Civil Procedure in Western Australia [66.19.5]). I would qualify the applicant's approach accordingly.

64 The hearing of 31 March 2008 concerned the applicant's application to amend the three grounds for the orders it sought by the unamended form of its originating process in CIV 2100 of 2007. That application was first heard at a hearing on 12 March 2008 at which programming orders were made. At the hearing on 31 March 2008 I gave leave to amend two of the three grounds but refused such leave for the third: see Tee [24]. I did so by reference to the authorities on O 55 r 5.

65 In my view of the nature of the hearing of 31 March 2008 the approach the applicant commended for that hearing, qualified as I have indicated, is indeed the appropriate form of the exercise of the discretion in O 66. However, in view of the nature of the hearing of 12 March 2008, that same approach so qualified should extend to the costs reserved at that hearing also.

66 The second of the three hearings for which the applicant commended its approach, that of 4 April 2008, arose out of the denial of leave to amend the originating process in CIV 2100 of 2007. At that hearing on the basis of O 55 r 5 I denied leave to make other amendments the applicant had applied to make to the remaining unamended ground in that process, and I struck that ground out, while making programming orders for a hearing of the originating process so amended: see Tee [26]. The striking out of the unamended ground in CIV 2100 of 2007 led to the applicant commencing further proceedings by CIV 1377 of 2008 to cover that ground, the hearing of which I later ordered should be held with that of the amended originating process in CIV 2100 of 2007: see Tee [27] and [29].

67 For the same reasons as for the hearings of 13 and 31 March 2008, the approach the applicant commended, qualified as I have indicated, is in my view the appropriate exercise of the discretion in O 66.

68 The third of the three hearings for which the applicant commended its approach, that of 16 May 2008, was a mention hearing for CIV 2100 of 2007 and 1377 of 2008. However, the hearing was taken up hearing submissions by the applicant in the absence of the respondent as to the sufficiency of the attempts it had made to serve the respondent with the originating process in CIV 1377 of 2008. At the conclusion of the hearing of 16 May 2008 the applicant indicated it would not press those submissions: see Tee [28]. In the event at a hearing on 3 June 2008 at which the respondent was again not present I determined that sufficient service had been made as a result of the further attempts made after the hearing on 16 May 2008: see Tee [29].

69 In my view of the nature and outcome of the hearing on 16 May 2008 the approach the applicant commended for costs reserved at that hearing, qualified as I have indicated, is indeed the appropriate exercise of the discretion in O 66.

70 I should add that I have reviewed the natures and outcomes of the other interlocutory hearings at which either no costs order or an order that costs be reserved was made, as shown in the helpful schedule of costs dated 27 October 2008 prepared by the applicant for the hearing on 21 November 2008. In my view of those natures and outcomes the costs of those hearings are appropriately dealt with in the exercise of the discretion in O 66 as the general costs order sought by the applicant provides.

71 Thus, I have determined that the respondent should be punished for the statutory contempts that in Tee I found established by the imposition of a fine of $4,000 with one month to pay after the date of the orders to give effect to this determination. This is subject to a liberty to apply to the court for an extension of time for good cause in respect of the time for payment of that fine.

72 Also, the respondent should pay the applicant's costs of the originating motions in CIV 2100 of 2007 and CIV 1377 of 2008 including any reserved costs to be taxed if not agreed with the following exceptions.

73 There should be no order as to the costs reserved at the hearings of 12 March 2008, 31 March 2008, 4 April 2008, and 16 May 2008, save that the respondent should be paid his out-of-pocket costs understood as I have indicated and reasonably incurred to be taxed if not agreed.

74 I will hear from the parties as to the form of the orders to be made to give effect to these conclusions, as well as the matter of whether or not to provide for imprisonment for failure to pay the fine.