Plaintiff v Defendant

2 The orders as to costs that the State ultimately sought[2] were:

1. Save as provided for in paragraph 2 of these orders, the plaintiff pay the defendant's costs of the proceedings on a standard basis to be taxed in default of agreement.

2. There be no order as to costs of the defendant's summons dated 11 October 2021.

3 Mr McKechnie did not dispute that the State was entitled to an order for the costs of the proceeding on a standard basis, other than the costs of the State's summons seeking summary dismissal ('the State's summons'). I dismissed that summons without hearing it on its merits as I considered that it was not an appropriate vehicle for the management of the proceeding.

4 Mr McKechnie sought an order for the costs of the State's summons. He argued that he was entitled to costs for all work reasonably done in connection with opposing that summons. Until 13 May 2022, when I indicated that I did not consider that it was appropriate to determine the summons, he and the State were under the impression that the summons was to be heard that day. He submitted that he had employed agents to perform work necessary to defend the State's summons, although he did not identify them.[3] He argued that the State should have withdrawn the summons and, if it had, it would have been liable to pay his costs of it. He said that he had been separated from the bulk of his legal materials, including those necessary to precisely specify the items that would be required to compile a bill of costs.

5 Mr McKechnie relied on a passage in Cachia v Hanes[4] in the New South Wales Supreme Court, and on the High Court's decision in the same case,[5] to support his claim for an award of costs for the work he reasonably did preparing his opposition to the State's summons. He emphasised that he did not seek an award of costs for the time he spent preparing his opposition to the summons.

7 Cachia v Hanes, which concerned the Supreme Court Rules 1970 (NSW), does not support Mr McKechnie's submissions. In the High Court's judgment, Mason CJ, Brennan, Deane, Dawson and McHugh JJ stated:[6]

To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.

Even less do the Rules provide for the substitution of an antithetical basis for the accepted basis upon which a taxation of party and party costs is conducted. We speak of antithesis because, as we have said, the accepted basis for an award of costs is that they are by way of indemnity. They are intended to reimburse a litigant for costs actually incurred, they are not intended to compensate for some other disadvantage or inconvenience suffered by the litigant.

9 In the later decision in Bell Lawyers Pty Ltd v Pentelow,[8] Kiefel CJ, Bell, Keane and Gordon JJ described the general rule as:[9]

a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation.

Their Honours cited Cachia v Hanes[10] for that proposition.

10 I consider that it is appropriate to make the orders sought by the State. Applying the High Court authority to which I have referred, I do not consider that Mr McKechnie, as a self-represented litigant, is entitled to be awarded costs for the work he performed opposing the summary dismissal application. I do not accept the distinction that he sought to draw between time spent and work done. The award of costs is a reimbursement for costs actually incurred. Thus r 63.30 of the Supreme Court (General Civil Procedure) Rules 2015 states:

Standard Basis

On a taxation on the standard basis, all costs reasonably incurred and of reasonable amount shall be allowed.

11 There is no evidence before the Court that Mr McKechnie incurred any costs in preparing his opposition to the State's summons.

[1] McKechnie v State of Victoria [2022] VSC 801.

[2] The State did not ultimately pursue an application for indemnity costs based on an offer of compromise; Transcript of Proceeding, McKechnie v State of Victoria (Supreme Court of Victoria, S ECI 2021 02596, Ginnane J, 23 February 2023) 25.

[3] Plaintiff's Reply Submissions on Costs filed on 2 March 2023, [10].

[4] (1991) 23 NSWLR 304, 321.

[5] Cachia v Hanes (1994) 179 CLR 403.

[8] [2019] HCA 29; (2019) 269 CLR 333.

[10] (1994) 179 CLR 403, 410-411.