Magistrates Court - Costs - Costs of litigant in person - Section 25, s 25(9) Magistrates Court (Civil Proceedings) Act 2004

Magistrates Court (Civil Proceedings) Act 2004, s 25, s 25(1), s 25(9), s 40, s 40(4), s 40(4)(b)

Michael v Monitronix Ltd (Unreported, WASC, Library No 920044, 20 February 1992)

R v Lieschke [1987] HCA 4; (1987) 162 CLR 447

Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148

Re Bertini; Ex parte Bertini [No 2] [2010] WASC 86

Re Burton; Ex parte Lowe [2003] WASCA 306

Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73

The Owners of SP 13443, 129-133 Eighth Avenue, Maylands v Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133

Wainwright v Barrick Gold of Australia Limited [No 2] [2012] WADC 126

1. This is an application for leave to appeal against a decision of his Honour Magistrate Walton on 21 July 2017 whereby it was ordered that the respondent pay the appellant's costs in the sum of $1,005.35 pursuant to s 25 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MC (CP) Act).

1. The appellant filed a notice of appeal containing three grounds which read as follows:
   1. The Appellant appeals order 1 made by the honourable magistrate on 21 July 2017 on the ground that in making the order, the honourable magistrate:

(i) the honourable magistrate did not allow the Appellant to fully present oral submissions at the hearing in respect of the number of times the claim of the Respondent in the matter under appeal ('claim') had previously been ventilated before the court by the Respondent; and

(1) affidavit of The Appellant sworn 13 July 2017 in support of his application ('affidavit'); and

(2) the annexures to the affidavit which constituted transcripts and orders demonstrating that the substance of the claim had previously been ventilated before the court on at least three occasions, and dismissed,

when the honourable magistrate properly allowed the Appellant to make full submissions or had proper regard to the affidavit and its annexures, the honourable magistrate would have found that:

1. The claim was either subject to res judicata; an abuse of the process of the court; or both; and justified the magistrate ordering that the Respondent pay the Appellant for the time spent by the Appellant in preparing for and defending the case under section 25(9) of the Magistrates Court (Civil Proceedings) Act 2004. In the alternative to the matters raised at paragraphs 1, 2 and 3, above, the decision of his Honour to award costs on the basis that he did under section 25(9) of the Magistrates Court (Civil Proceedings) Act 2004 was against the weight of the evidence before the court.

1. The notice of appeal hints at a history of acrimony between the parties reflected in somewhat tortuous proceedings in the Magistrates Court. A brief history is set out below.
2. In 2012 the respondent commenced a general procedure claim against the appellant (12958 of 2012) in the Joondalup Magistrates Court for the payment of services for bookkeeping.
3. On 20 May 2013, the Magistrates Court dismissed the respondent's claim.
4. On 31 October 2013 the appellant filed a general procedure claim (504 of 2013) seeking an order that respondent return various items of property to him.
5. On 6 November 2014, the Magistrates Court ordered, inter alia, that the respondent return various items of property to the appellant.
6. On 12 August 2016, the Magistrates Court ordered default judgment against the respondent in favour of the appellant in the sum of $10,120.70.
7. On 29 August 2016, the respondent filed an application to set aside that default judgment (minor case number 2212 of 2014).
8. On 21 November 2016, the Magistrates Court dismissed the respondent's application to set aside the default judgment.
9. On 5 December 2016, the respondent filed a general procedure claim (19332 of 2016) seeking payment of $48,650 for clerical services from the appellant.
10. On 17 February 2017, the matter came on for hearing before his Honour Magistrate Cockram. Magistrate Cockram indicated to the parties that the respondent's claim was res judicata because it was essentially the same claim as 12958 of 2012 (which had previously been determined). His Honour dismissed the respondent's claim.

1. On 19 May 2017, the appellant appeared before his Honour Magistrate Walton and sought an order for costs. His Honour adjourned the application for costs to a special appointment on 21 July 2017.
2. On 21 July 2017 the learned magistrate allowed the appellant's claim for costs and ordered that the respondent pay court fees to the appellant in the sum of $281.85 pursuant to s 25 of the Magistrates Court (Civil Proceedings) Act. The learned magistrate also made an order pursuant to s 25(9) of the Magistrates Court (Civil Proceedings) Act and ordered the respondent pay the appellant expenses and losses in the sum of $955.35 (a total of $1,005.35).

Costs under the Magistrates Court (Civil Proceedings) Act 2004

1. Section 25(1) of the Magistrates Court (Civil Proceedings) Act provides as follows:

The Court may order a party to a case to pay the whole or a part of another party's costs in the case.

1. Section 25(9) provides that costs may be awarded to self-represented parties. It says:

If the Court orders the costs of a self-represented party to be paid by another party, the Court may order that the whole or a part of the expenses or losses incurred by the self-represented party in or in connection with conducting the case be included in the costs.

1. The meaning of s 25(1) and s 25(9) of the MC (CP) Act was considered by his Honour Justice Mazza in Re Bertini; Ex parte Bertini [No 2] [2010] WASC 86 in the context of awarding costs to a self-represented litigant. His Honour said [31] - [32]:

The words 'expenses' and 'losses' are not defined in the MCCP Act. It is unnecessary for me and I am not inclined in this case, given that neither party made submissions on the point, to precisely define the scope of these words. However, I am satisfied that because of the use of the word 'losses' in addition to the word 'expenses', the court, in its discretion may award a self represented party more than out of pocket expenses. It may well be that the word 'losses' includes costs for lost time.

Where a magistrate decides that a self represented party is entitled to costs under s 25(9) this should be explicitly stated in the order so that both the parties and the registrar are clear as to what items comprise the award of costs. If the order makes no explicit reference to s 25(9) or in the absence of material which shows that the magistrate who made the order intended the order to be made under s 25(9), any relevant bill of costs should be assessed on the basis that the costs order was based only on s 25(1).

A litigant in person is only allowed out of pocket expenses reasonably and properly incurred: Michael v Monitronix Ltd (Unreported, WASC, Library No 920044, 20 February 1992). Such a litigant cannot recover as costs, compensation for time spent by him or her in preparing and conducting the case unless permitted by statute: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 417.

...

Section 25(9) is a statutory exception to this general rule to the extent that it gives the Magistrates Court a discretionary power to award any self-represented litigant costs for their expenses and losses incurred in or in connection with the conduct of the case.

1. In the present case, the learned magistrate awarded the appellant court costs in the sum of $281.85 pursuant to s 25(1) of the MC (CP) Act.
2. His Honour acknowledged that the discretion to award costs (in the sense of 'losses') under s 25(9) of the Act was enlivened and decided to make nominal awards for the appellant's time in addition to an award for expenses (in the sense of disbursements). The total amount awarded for expenses and losses was $955.35.
3. In arriving at the amount of expenses and losses to be awarded the learned magistrate had regard to various invoices which the appellant had annexed to his affidavit.
4. It is convenient to set out the learned magistrate's awards of costs in itemised form.

1. In the course of stating his reasons for the award of costs, the learned magistrate noted that he was only making an award for the costs of general procedure claim 19332 of 2016. His Honour said:

The summary judgment application by the defendant against the claimant was successful in general procedure claim 19332/2016. That summary judgment claim by the defendant against the claimant was successful on 17 February 2017. Today is only about the costs payable by the claimant to the defendant as a result of the successful summary judgment application in favour of the defendant. Critically, the only determination on costs to be made is in claim 19332 of 2016 and no other claim. It is beyond any power and inappropriate to consider any other proceedings as the defendant was successful was in 19332 of 2016 and as that is the only matter before me. The defendant has filed a detailed affidavit in support of his costs application sworn 13 July 2017. In addition to that, I've had regard to the affidavit of 19 July 2017.[1]

1. The learned magistrate then went on to consider the effect of s 25(9) of the MC (CP) Act.
2. The learned magistrate accepted that he had a discretion to award costs for losses in addition to out of pocket expenses, noting that s 25(9) is a statutory exception to the general rule that a self-represented litigant is only entitled to expenses reasonably and properly incurred: Michael v Monitronix Ltd (Unreported, WASC, Library No 920044, 20 February 1992) (Wallwork J).
3. In this regard, his Honour said:

Section 25(9) is the statutory exception to this general rule to the extent that it gives the magistrate of the court a discretionary power to award any self-represented litigant costs for their expenses and losses incurred in or in connection with the conduct of the case.

Going through the papers, I consider a costs order under s 25(1) is appropriate in favour of the defendant following the usual rule. However, insofar as s 25(9) is concerned, I have dealt with this separately and consider some allowance should be made in favour of the defendant for those costs. I note that he is a non-legal practitioner. That order, however, must be tempered and moderated, given the circumstances and somewhat broad nature of the claim for costs by the defendant. So you've been specifically - will be awarded costs under s 25(1) and s 25(9). I understand my discretion in relation to costs is very broad. Further, I've already noted s 31 does not apply as it's not a minor case matter.

I've had very detailed consideration of the defendant's affidavit. The defendant has listed a number of different matters beyond this matter, being 19332 of 2016, including 1298 of 2012, 504 of 2013, and 2212 of 2014. They are irrelevant to this application, and I cannot take them into account, nor do I, other than to simply reinforce that summary judgment was given in your favour, the appellant. A large portion of the affidavit material is irrelevant and argues points that are based more on the animus of the parties than legal issues.

1. His Honour went on to note that this was a costs application and 'not a forum for special damage or restitution or exemplary damages'. In this regard, the learned magistrate was undoubtedly correct.
2. In relation to the various 'invoices' filed by the appellant (totalling $5,352.29) the learned magistrate noted that an underlying premise of the appellant's claim for costs was a $60 hourly rate for his time. His Honour held that premise to be flawed because, although the appellant was entitled to 'the whole or a part of the expenses or losses incurred by the self-represented party in or in connection with conducting the case', [2] he was retired. There was therefore no legitimate basis for the appellant to have claimed his time at that hourly rate.
3. His Honour nevertheless was prepared to make nominal allowances for the appellant's time in the exercise of his discretion. The learned magistrate acknowledged that the award for costs was 'nebulous, clearly' but that he based his decision upon his wide discretion under the legislation and the case law on costs.[3]
4. This was undoubtedly the correct approach. As Bowden DCJ said in Wainwright v Barrick Gold of Australia Limited [No 2] [2012] WADC 126 [13] - [14]:

Costs are discretionary and they do permit a flexible approach and the overriding consideration must be the need to do justice between the parties.

There is also a need for costs to be determined in such a way that parties realise that they will not necessarily recover the whole of their costs if unsuccessfully raising a discrete issue and costs orders should hopefully encourage the parties to consider the matters that they will raise and litigate at trial (footnotes omitted).

The material before me and application to adduce further evidence

1. The material before me included the entire Magistrates Court file. This included all of the material before Magistrate Walton including various documents written in the appellant's handwriting. Those documents included a two page document entitled 'submission', an eight page affidavit, an 11 page affidavit, a six page document entitled 'special damages claim', and a five page document entitled 'cost and out of pocket expenses'.
2. As the learned magistrate pointed out, those documents were difficult to follow. In truth, much of the information contained in them was a record of the appellant's grievances in relation to the respondent and the conduct of previous proceedings between them. Nevertheless it is apparent that the learned magistrate did take into account the content of the appellant's affidavit insofar as it demonstrated that the appellant had incurred expenses and losses. His Honour specifically referred to having given 'detailed consideration to the affidavit'. [4] It is apparent, having regard to the fact that he gave consideration to each item claimed that he had read and considered the appellant's affidavit.

1. In support of the appeal, the appellant filed various additional handwritten documents. Although he did not expressly make an application to adduce further evidence, it is implicit in the fact that they were filed in this court that he sought to rely on them.
2. The documents included a six page document entitled 'Submission - damage to the appellant's business Creative Veneer and Furniture sole trader dated 2 January 2018', a five page document entitled 'Facts the Magistrates Court of WA have disregarded since December 2012, a six page document entitled 'Blackmail letter and general dishonesty of the respondent's submission', a nine page document entitled 'Affidavits in main magistrates file of 19332-2016 matter to be referred to at trial of 15 January 2018', a 26 page document entitled, 'Submission background to cases 5 years ongoing'.
3. Pursuant to s 40(4) of the MC (CP) Act I must decide the appeal on the material and evidence that was before the Magistrates Court. Whilst under s 40(4)(b) of the MC (CP) Act I may give the appellant leave to admit other evidence, I should only do so if there are exceptional circumstances.

1. For the appellant to establish that there are exceptional circumstances justifying additional evidence being adduced in these proceedings, he must show that there was something out of the ordinary or something unusual, special or uncommon justifying its admission. [5]
2. With all due respect to the appellant, the documents were voluminous, repetitive, difficult to understand and largely irrelevant to the question of whether the learned magistrate had erred in relation to the question of costs.
3. It is clear that both before the Magistrates Court and this court the appellant was seeking to re-litigate matters in contest between him and the respondent. He is clearly aggrieved by the respondent's conduct. However, the question of whether the appellant's grievances are justified is irrelevant to the issue of what was an appropriate award of costs.
4. None of the grounds addressed the issue of why the learned magistrate's award as to costs was wrong in fact or law. The grounds invited a re-ventilation of matters in dispute between the parties and asserted that the learned magistrate should have given greater weight to the respondent's conduct in pursuing a claim without merit.
5. There are no such exceptional circumstances justifying the admission of any additional evidence. Therefore, to the extent that the documents filed by the appellant in this appeal contain meaningful submissions on evidence that was before the learned magistrate I am able to take them into account. However, to the extent that those documents address matters of evidence not before his Honour, I do not have regard to them.
6. Having read and considered those documents, and having listened carefully to the appellant's submissions at the hearing, I can find no error with the learned magistrate's reasons. The appellant was unable to articulate why the learned magistrate erred in awarding the costs that he did other than to complain that it did not adequately reflect what he considered to be a fair fee for service for his efforts in defending himself against the respondent.

1. The appellant contends that he was denied natural justice because the learned magistrate did not give him an opportunity to fully present oral submissions and failed to have adequate regard to the affidavit which he had filed.
2. The appellant also appears to be in effect submitting that exemplary damages are payable on the basis that the respondent's latest action against him was an abuse of process. There is no provision in the MC (CP) Act for the payment of exemplary damages to an unpresented litigant for an abuse of process.
3. In considering whether the appellant was denied natural justice, it has to be borne in mind that this was an application for costs in the Magistrates Court. Whilst principles of natural justice apply to courts (including the Magistrates Court) the nature of the proceedings is relevant. [6] This was not a 'minor case' (such as in Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148) but it cannot be expected that judicial officers in a busy list in the Magistrates Court must permit unfettered latitude to litigants intent on having their say on matters of doubtful relevance.
4. A person will have been denied natural justice if he is denied the opportunity to be heard.[7] It is true that the learned magistrate did not permit the appellant to address him at large. However, his Honour was entitled to confine the appellant to addressing matters of relevance to the application. In my view, that was not to deny him natural justice. As the learned magistrate made plain to the appellant, this application related only to general procedure claim 19332 of 2016 and not to the other actions between the appellant and the respondent. Consequently, denying the appellant to air his grievances could not amount to a denial of natural justice.
5. I am unable to find any error in the learned magistrate's approach. As I have already said, it is plain that the learned magistrate did have regard to the material that the appellant had placed before him. In so doing, his Honour gave the appellant an opportunity to address matters relevant to the application.[8]

1. It follows from what I have found that the appellant's claim of a denial of natural justice in ground 1 cannot be sustained.
2. The learned magistrate did make an award in favour of the appellant for losses over and above an award for expenses. In the absence of any objective evidence of any greater losses, only a nominal award was appropriate. The appellant's claim that the magistrate's decision was against the weight of the evidence has no merit.
3. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[5] Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73 [5] - [9]; The Owners of SP 13443, 129-133 Eighth Avenue, Maylands v Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133 [40]

[6] R v Lieschke [1987] HCA 4; (1987) 162 CLR 447.

[7] Re Burton; Ex parte Lowe [2003] WASCA 306.