Mbuzi v Favell

transcripts of proceedings involving Mr Mbuzi before the Supreme Court of Queensland; a copy of Ivers v McCubbin [2005] QCA 200; and an excerpt from a legal text. 5 On 5 April 2012 Mr Favell filed submissions in respect of costs. Materially, Mr Favell contended: 1. The court's power to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) ("the Act"). 2. Section 43 confers a broad general discretion in respect of the awarding of costs. That discretion is one which must be exercised judicially, not whimsically or idiosyncratically. 3. Mr Mbuzi has not established any entitlement to costs. 4. The claim made is not substantiated. 5. There is not a proper basis for making any order for costs in favour of Mr Mbuzi and no order should be made. 6 Mr Favell relied on Cachia v Hanes, George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 and Australian Super Pty Ltd v Woodward. 7 On 17 April 2012 Mr Mbuzi swore an affidavit in which he responded to Mr Favell's submissions filed 5 April 2012. In that affidavit Mr Mbuzi deposed, in summary: he was claiming only outlays, not legal costs; he was relying on the document filed on 28 March 2012; and he was claiming the Federal Court filing fees from Mr Favell. 8 On 12 July 2012 the parties returned before me for further directions. At that hearing Mr Mbuzi submitted, inter alia, as follows: … I found that to give notice to this court that indeed although I do not have legal representation, when the court mutters because I've not studied law, I'm not legally qualified and my area is different from law, I go to Atkins [sic] Chambers, which is headed by a former attorney-general and minister for justice Honourable Foley and I give work - those who work in legal circles a call - direct briefing. And the agreement is as I put it there that upon success I will pay a certain amount to pay for consultation, and that is what I have done. (Transcript 12 July 2012 p 6 l 43 - p 7 l 3)

Consideration 9 Articulating claims and submissions in Court is frequently difficult for litigants in person. While proper discipline in relation to presentation of arguments needs to be maintained so as not to disadvantage the party who has legal representation, some latitude can, in appropriate cases, be extended to unrepresented litigants in relation to the manner in which they present their cases. In this case Mr Mbuzi has presented evidence and submissions, mixed in documents filed and an affidavit. I am prepared to take this material into consideration. 10 While the Court has a broad discretion in relation to cost orders pursuant to s 43 of the Act, as a general proposition costs follow the event in the absence of special circumstances warranting a different order: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136. In my view it follows that, as Mr Mbuzi was successful in his appeal, he ought to be entitled to costs and outlays properly incurred. 11 At the directions hearing on 12 July 2012 Mr Hackett for Mr Favell submitted that, in respect of legal costs allegedly incurred by Mr Mbuzi, there was no evidence of a client agreement between a legal practitioner and Mr Mbuzi as is required by the Legal Profession Act 2007 (Qld) to entitle him to recover the fees of a legal practitioner in respect of attendances. So far as I can determine, this is correct. However it may be that Mr Mbuzi is able to produce an invoice in respect of particular legal advice or assistance, if he has obtained legal advice or assistance to assist him in prosecuting his appeal. In the event that Mr Mbuzi has properly incurred legal costs in respect of these proceedings, in my view he could properly claim them. In this respect I note comments of Templeman J in comparable circumstances in Saldanha v McAdam [2007] WASC 297 (S) at [11]-[12]. As his Honour there observed: 11 Ms Saldanha claimed the sum of $60 being the cost of lunch with 'a lawyer friend' who provided her with informal advice about her case. 12 The State Solicitor's view was that this was not a proper disbursement, but that if the lawyer rendered an account for the advice, Ms Saldanha would be entitled to claim the relevant amount. I agree. I would not accept the claim for $60 unless Ms Saldanha provides an invoice from the lawyer. 12 In respect of out of pocket expenses claimed by Mr Mbuzi, there is sound authority to the effect that Cachia v Hanes does not prevent a litigant in person from claiming out of pocket expenses actually, necessarily and reasonably incurred: Schokker v Commissioner of Taxation [1999] FCA 1311 at [3], Von Reisner v Commonwealth of Australia (No 2) (2010) 262 ALR 430 at [23], George v Fletcher (Trustee) (No 2) at [17], Visscher v Teekay Shipping (Australia) Pty Ltd (No 3) [2012] FCA 212 at [9]. The power of the Court to award costs conferred by s 43 of the Act does not extend to awarding a litigant in person any amount for the time spent in preparing the case or presenting it to Court, however there is nothing in Cachia v Hanes which precludes a claim for such expenses as filing fees or the costs of copying the appeal books: George v Fletcher (Trustee)(No 2) at [17], Visscher at [9]. 13 In my view the appropriate order is to require Mr Mbuzi to present to the Registrar a bill of costs and disbursements in taxable form in accordance with the Federal Court Rules 2011, and to further order that Mr Mbuzi should be entitled to recover such costs and disbursements in respect of these proceedings as the Registrar allows as being properly and reasonably incurred. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.