Penhall-Jones v State of NSW

REASONS FOR JUDGMENT BUCHANAN J: 1 This judgment deals with a question of costs. On 28 June 2007 I dismissed the appellant's appeal against a judgment of the Federal Magistrates Court (Penhall-Jones v State of NSW [2007] FCA 925). In the earlier judgment I noted that the respondent had sought its costs if the appeal was dismissed but no submissions about costs had been made by the appellant. I gave her leave to make submissions about that issue. She has now done so. 2 The appellant's submissions draw attention, in the first instance, to the judgment of the Court in Ogawa v The University of Melbourne (No 2) [2004] FCA 1275 at [40] - [42]. In that judgment Kenny J gave consideration to the circumstances in which costs, including indemnity costs, might be awarded against self represented litigants. Having regard to the circumstances of that matter, her Honour awarded costs on a party/party basis and also on an indemnity basis against a self represented litigant. 3 As I said in Rahman v Ashpole [2007] FCA 883 at [28]: 'The jurisdiction of the Court to order costs is conferred by s 43 of the FC Act. The discretion is a general one. The Court takes special care when asked to make an order for indemnity costs against an unrepresented litigant but there is no bar to such an order (see Bhagat v Global Custodians Ltd [2002] FCA 223 at [55] - [60] and Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792 at [41] - [46]).' 4 Although Ms Penhall-Jones drew attention to the judgment in Ogawa and quoted paragraphs 40 - 42 she did not, as a result, make any submissions that costs should not be awarded against her. Rather, she made a series of submissions directed to quantifying the precise amount which should be allowed to the respondent as costs for particular aspects of the hearing. She concluded that exercise with the following submission: 'In conclusion to [sic] Appellant submits that it would be fair and reasonable in all the circumstances for it to pay costs of $8,190.00 (exclusive of GST) thereby disallowing costs incurred by the respondent which were unnecessary and extravagant, particularly given that Appellant was a non-legal self-represented litigant.' 5 The respondent has not sought costs on an indemnity basis. I accept Ms Penhall-Jones' submission that any order for costs should be made on the basis that she pay party/party costs and not indemnity costs. As that is the usual position it is not necessary to state that explicitly in the order. 6 One specific issue raised by Ms Penhall-Jones was whether costs should be allowed to the respondent for senior counsel. She submitted they should not. In a written submission in response the respondent sought a 'certification or declaration from the Court that senior counsel's involvement was appropriate'. 7 Whether costs should be allowed for two counsel, or for senior counsel, is normally a matter within the discretion of the taxing officer. If costs are required to be taxed the taxing officer will be guided by O 62 of the Federal Court Rules. In my view the issues in the case appear sufficiently from the earlier judgment. I see no reason to fetter the normal exercise of the taxing officer's discretion in the way suggested by either party. The taxation of costs may, if necessary, be reviewed by a judge (O 62 r 11). 8 As to Ms Penhall-Jones' other submissions directed to quantifying the amount of costs which she should pay, these, like an allowance for senior counsel, are matters for the taxing officer if agreement is not reached. 9 Ms Penhall-Jones also submitted that any order for costs should be stayed until the outcome of other proceedings which are pending between herself and the respondent and which are listed for hearing commencing 3 December 2007. I can see no reason why an order for costs in the present matter should be stayed. 10 There will be an order that the appellant pay the respondent's costs as taxed if not agreed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice BUCHANAN J.