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[2021] FCA 1212
Federal Court of Australia
2021-10-08
Mason CJ, McHugh JJ, Kiefel CJ, Gordon JJ, White J
Original judgment source is linked above.
WHITE J: 1 On 27 July 2021, I delivered judgment upholding the application of the applicant for judicial review of the decision of the respondent, as a Registrar of this Court, to reject documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth): Rana v Registrar Cridland [2021] FCA 848 (the Principal Judgment). I made orders setting aside the decision of the Registrar made on 5 March 2021 and remitted the matter for reconsideration of the acceptance of the documents for filing, in the light of those reasons. 2 As the parties had not been heard on the issue of costs, I made orders for an exchange of written submissions and said that, subject to further order, the Court would determine any application for costs on the papers. I also directed that, in the absence of any written submissions from the applicant, the parties were to bear their own costs. 3 I stated my preliminary view that no order as to costs may be appropriate, first, because it was not apparent that the applicant, as an unrepresented litigant, had incurred any costs of a material kind which could be the subject of a costs order and, secondly, because I considered that the manner of the applicant's pleading had contributed materially to the Registrar's decision. 4 On 28 July 2021, the applicant filed submissions seeking an order for costs incurred in relation to his judicial review application. The respondent indicated that she did not wish to be heard on the question of costs. 5 The applicant describes the costs for which he seeks payment as "out of pocket expenses", which he particularises as follows: (a) Research on Austlii in a friend's home (3 hours @ $15 per hour) in addition to printing $60 (b) "Private" cost to learn from law student $150 (c) Out of pocket expense (4 lunches with the law student) $50 Total $260
6 In support of his claim to payment of $260, the applicant claims that "in recent developments" various Law Reform Commissions have recommended that unrepresented litigants recover [their] costs "according to relevant rules of this Court". He did not identify any Law Reform Commission report containing a recommendation to this effect. 7 The jurisdiction of the Court to award costs is contained (relevantly) in s 43 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Section 43 of the FCA Act provides that, except as may be provided in another Act, the award of costs is in the discretion of the Court. 8 The term "costs" is not defined in the FCA Act, but the authorities in respect of analogue provisions in other jurisdictions indicate that it refers to professional legal costs actually incurred in the conduct of litigation: Cachia v Hanes [1994] HCA 14, (1994) 179 CLR 403 at 410-11 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, (2019) 93 ALJR 1007, at [1] (Kiefel CJ, Bell, Keane and Gordon JJ). The underlying rationale is that "costs are awarded by way of ... partial indemnity ... for professional legal costs actually incurred in the conduct of litigation" (emphasis added): Bell Lawyers at [22], citing the majority in Cachia v Hanes at 410. The same approach is appropriate in the context of s 43 of the FCA Act. 9 There are circumstances in which a successful self-represented litigant may be entitled to recover out of pocket expenses incurred in the litigation: Willing v Hollobone (1972) 3 SASR 532, at 534 (Bray CJ). 10 The principles just mentioned indicate that the applicant is not entitled to recover costs in respect of his time conducting research on Austlii. The applicant has not incurred that expense at all, let alone as an expense by way of a professional legal cost. The "private costs to learn from law student" are also not a professional legal cost as a non-admitted law student is not entitled to give legal advice in accordance with the Legal Practitioners Act 1981 (SA) (s 21). 11 The costs of the applicant's lunches with a law student cannot be regarded as an expense reasonably incurred in connection with the litigation. They are not recoverable as an out of pocket expense. 12 It is possible that the applicant's printing costs could be regarded fairly as an out of pocket expense. However, they should not be allowed. In the first place, they appear to be de minimis. Secondly, as I indicated in the Principal Judgment, I consider it appropriate to take into account that the manner of the applicant's pleading seems to have contributed materially to the Registrar's decision. That is to say, I consider that there is conduct of the applicant which disentitles him to an award of costs in respect of matters such as printing costs. 13 For these reasons, the application of the applicant for an order for costs in his favour is refused. I order instead that there be no order as to costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.
Rana
Registrar Cridland