Scott & Anor v NTA & Ors [2005] NTCA 4

Court of Appeal (NT)|2005-07-04|Before: Mildren J, Priestley AJ

JUDGMENT OF: MARTIN (BR) CJ, MILDREN J AND PRIESTLEY AJ

Costs on successful appeal - applicant assisted McKenzie friend - award out of pocket expenses only.

Scott & Anor v NTA & Ors [2005] NTCA 4

ATTORNEY-GENERAL OF THE NORTHERN TERRITORY OF AUSTRALIA

[1] On 22 February 2005 this Court upheld the applicants' appeal against a decision of a Judge holding that the Supreme Court of the Northern Territory does not have jurisdiction to make an order for the exhumation of a body located outside the geographical boundaries of the Northern Territory. The question of costs was reserved.

[2] The respondents do not contest that the applicants are entitled to the following costs incurred in pursuing the proceedings in this Court:

Video conferencing expenses for the appeal $1,700

Filing fee $500

Service expenses $99

[3] At issue is a claim by the applicants identified in their written submissions in the following terms:

"Fees for the professional legal services provided by Mr Taylor as their legal friend, in satisfaction of the responsibility placed upon him by way of leave of the Court to represent the litigants in the Court, to be quantified in accordance with the Supreme Court Rules for costs of a Solicitor's Clerk."

[4] At the request of the applicants, this Court gave leave to Mr Daniel Taylor to appear as a McKenzie friend for the purposes of presenting the applicants' submissions. Mr Taylor is not an admitted practitioner. Nor is he a clerk employed by a solicitor. The applicants were granted the indulgence of having Mr Taylor present their submissions for them. The Court did not, as the applicants' written submissions suggest, place a responsibility on Mr Taylor.

[5] Provision is made for costs in O 63 of the Supreme Court Rules. It is well settled in this context that while litigants in person are entitled to costs by way of out of pocket expenses, they are not entitled to costs in the nature of preparation and court presentation such as are normally awarded for professional legal services.

[6] Mr Taylor is a student. He is not entitled to recover from the applicants any professional legal fees.

[7] The application for fees for services provided by Mr Taylor is refused. Pursuant to O 63.07 of the Supreme Court Rules, the order of the Court is that the respondents pay the applicants costs fixed at $2,299.00 being the sum of the out of pocket expenses specified earlier in these reasons.

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