Rambaldi v Woodward

REASONS FOR JUDGMENT 1 On 20 February 2013, I rejected the respondent's application for costs (save as to disbursements) consequent upon her success in the applicant's application for leave to appeal from the interlocutory judgment of a single Judge of the court made on 13 December 2012: Rambaldi v Woodward (No 2) [2013] FCA 104. I then made orders for the parties to file written submissions on the question of the costs of the respondent's application for costs. 2 It is important to understand how that question came to be resolved on the papers, rather than, as would normally be appropriate, orally upon the delivery of judgment. When I made orders favourably to the respondent on 8 February 2013, she asked for her costs. It was my view that, as a self-represented litigant, the respondent would not be entitled to costs, save for disbursements. There did not seem to be any doubt about this general proposition, but the respondent immediately informed me that she was a legal practitioner, in relation to whom there was an exception to the general rule to which I have referred. I asked her whether she held a practising certificate, and she answered, without hesitation, in the affirmative. Counsel for the applicants were unsure of the scope of the exception to the general rule, and desired to have the opportunity to consider the question of the respondent's entitlement to costs in the circumstances which arose. For that reason, I indicated that I would deal with the matter on the papers, and would receive submissions from the parties accordingly. 3 Those submissions were made, and led to the orders of 20 February 2013. Those orders being relevantly adverse to the respondent, the question then arose whether she should be required to pay the applicants' costs of making submissions on the subject and, if so, on what basis. It is with those questions that these reasons are concerned. 4 In the course of preparing their written submissions, the applicants were obliged to investigate the question whether the respondent did hold a practising certificate and, if so, what were the terms thereof. It was the applicants who informed the court that the practising certificate held by the respondent was a limited one which would not have permitted her to appear for another person in a case of the kind which was before the court. The applicants ought not to have been put to that trouble and expense. It is the respondent who ought to have informed the court of the kind of practising certificate which she held. 5 The respondent's statement to the court on 8 February 2013 that she held a practising certificate was literally true. However, it was misleading. It gave the impression that her position was to be equated with that of a legal practitioner who was entitled to appear in the proceeding in which she sought costs. It was, after all, to the position of such a practitioner that she sought to assimilate her own position, to her own pecuniary advantage as against the applicants. The court is entitled to expect, and it is the obligation of a practitioner to display, a higher standard of frankness than was displayed by the respondent on this occasion. 6 In her written submissions most recently filed, the respondent submitted that the applicants were aware that she was engaged in legal practice as a solicitor employed by the NSW government, because they had obtained her financial records, and examined her pursuant to the exercise of their powers under the Bankruptcy Act 1966 (Cth). However, this tendentious submission fails to come to grips with the question which presently arises. That question relates not to the kind of practice in which the respondent is engaged, but to the kind of practising certificate which she held, and to the representations which she made to the court on 8 February 2013. 7 In those submissions, the respondent also said that the "discussion" that took place on 8 February 2013 "was brief, hurried and suffered from an imprecision in language which resulted in a misunderstanding". This too is a tendentious and self-serving submission which avoids confronting the misleading nature of the answer which the respondent gave to the question addressed by the court. If there was any "imprecision in language", it was an imprecision of which the respondent alone was conscious, and of which she took advantage. 8 Had the respondent been frank with the court on 8 February 2013, it would immediately have been apparent that her right to practise was not such as would have invoked the exception to the general principle that a self-represented litigant is not entitled to his or her own costs, save for disbursements. In the circumstances, the costs which the applicants incurred dealing with this question were brought about wholly by the misleading response which the respondent gave to the court, and should be to her account. 9 This is, in my view, a very clear case for the respondent to pay those costs on an indemnity basis. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.