20 In addition, at the time of the offer all the relevant evidence - that is to say, the evidence which established, in my view, that the applicant had no reasonable prospects of success - was known to the applicant.
21 I am of the view that the offer was a genuine offer of compromise. As I have already observed, at the time the offer was made the respondent had incurred some costs, which it was prepared to forego. Perhaps more importantly, however, as the respondent submitted, the offer presented the applicant with a valuable opportunity to have proceedings (that have been adjudged to have no reasonable prospects of success) dismissed with no costs consequences.
22 As Logan J held in Granitgard v Termicide Pest Control (No. 6) said:
Order 23 r 11(6) forms part of a regime the aim of which is to encourage compromise with the attendant benefits for the parties in terms of agreed certainty of outcome, as opposed to the risks of litigation and for the nation, in terms of allowing limited judicial resources to be deployed in the resolution of the truly intractable controversies. It does this by encouraging a respondent to make a realistic offer of compromise and encouraging an applicant who receives such an offer to accept it lest, if the respondent obtains a more favourable judgment, the applicant become liable to a greater amount of costs as a result of the respondent having a prima facie entitlement to taxation on an indemnity basis. One way of viewing cases which have termed an offer "not genuine" is to regard them as examples of cases where the offer could be seen not to advance the underlying purpose of an order such as O 23.
23 I turn now to consider whether the applicant has established a proper reason for ordering that the respondent should not have indemnity costs for the period sought.
24 In his written submissions the applicant argued that there are "exceptional and compelling circumstances displacing the respondent's prima facie position…" including but not limited to:
a) The respondent's breach of s 76(1) of the Navigation Act 1912 (Cth).
(In oral submissions the applicant explained that the respondent "does not come with clean hands" because it "has not provided a full and true account of my wages" and was seeking to take advantage of that fact.)
b) In breach of a fundamental term of the Articles of Agreement(s), for at least two discrete contracts of employment, the respondent's non-payment of wages and/or entitlements to the applicant in the sum of about $3,047.55:
i) The non-payments go to the heart of the applicant's further amended statement of claim filed in these proceedings.
c) The processes of the Court whereby it erred in not according to the applicant his claims in accordance with the law.
d) The processes of the Court whereby it erred to the extent of not enforcing those statutory rights of the applicant, a seafarer, as conferred by the relevant provisions of the Navigation Act 1912 (Cth) and the Admiralty Act 1988 (Cth), for the recovery of his wages and/or entitlements.
e) The applicant relies on:
i) his affidavit dated 14 March 2011 (the affidavit is filed in this matter).
ii) his affidavit dated 11 January 2011, supporting his application for leave to appeal (the affidavit is attached to this Outline of Submission).
25 None of these matters has any bearing on the issues for determination on this motion. They do not provide a reason for depriving the respondent of its prima facie entitlement.
26 I have reflected on whether there might be any other reason for so doing. The notice of motion for summary dismissal was brought at a relatively late stage of the proceeding. It was successful, not because of the weakness of the applicant's case but because of the strength of the respondent's defence. The mere fact that the defence was available did not defeat the applicant's case. The defence had to be pleaded before the respondent could rely on it. Until the defence was served on the applicant, which I infer was on or around the time it was filed, there is no evidence to indicate that the respondent conveyed to the applicant an intention to raise it. The Rules do, however, permit an offer of compromise to be made at any time before the pronouncement of judgment and do not require that proceedings should have reached any particular stage of development before an offer with costs consequences can be made. There is no reason in principle, therefore, that such an offer could not be made before the defence is served or even foreshadowed and "every reason for encouraging offers of compromise to be made as early as the circumstances reasonably permit". See Port Kembla Coal Terminal v Bravurus Maritime Inc (No. 2) (2004) 212 ALR 281 at [22]. Whilst I have some sympathy for an unrepresented litigant who is met with such an offer in such circumstances, the applicant was not unrepresented at the relevant time. The evidence presented on this motion shows that he had a solicitor acting for him when the application and statement of claim were filed (the statement of claim shows that it was settled by counsel), right up until two weeks before the hearing began in August last year, when he commenced to act for himself.
27 In all the circumstances, I am not persuaded that there is a proper reason to depart from the prima facie position that the respondent should have its costs on an indemnity basis as sought.
28 This is not, however, the end of the matter. To make the orders the respondent seeks, I have to vary the order I made on 4 January 2011. The exercise of the power is discretionary. Its operation is exceptional, not de rigeur. Delay may militate against its exercise. The motion was not filed until a month after the order was made and after the applicant had filed his application for leave to appeal. Ordinarily a party wishing to be heard on the question of costs will indicate as much at the time of submissions or when judgment is pronounced. The respondent is represented by a large law firm, was represented at the hearing by senior and junior counsel, had a lawyer take the judgment, and should have known of the practice. No evidence was offered to explain the delay. From the bar table counsel for the respondent submitted that it was not readily apparent from the orders that the respondent had succeeded in its motion for summary dismissal.
29 In hindsight, as I said earlier, I accept there may have been some ambiguity in the orders, but a quick perusal of the reasons, which were published at the time the orders were pronounced, would have dispelled any uncertainty. Counsel stated that the judgment was delivered during the vacation, but this Court has no vacation period. On the other hand, the delay did occur during a period in which the profession customarily enjoys a vacation and the motion was filed in the first week of what is commonly referred to as "the Law Term". Counsel also argued that it was necessary to consider whether to put on the motion. I accept that, but the time for such consideration was in advance of the outcome, not later, at the respondent's leisure.
30 In Aktas v Westpac Banking Corporation Ltd and Another (No. 2) (2010) 273 ALR 118 the High Court refused an application by Westpac to amend orders as to costs also made about a month after judgment was delivered. In that case the majority (French CJ, Gummow and Hayne JJ) accepted that the Court had the power to recall the orders it had made but held that it should not. They stressed (at [6]) that the jurisdiction to vary a judgment is one to be exercised with great caution having regard to the importance of the public interest in the finality of litigation. They observed (at [7]) that Westpac had had ample opportunity to foreshadow that, if the appeal succeeded, it wished to be heard in support of an application for a special costs order. So, too, here. On balance, having regard to the considerations I have mentioned, I decline to exercise my discretion in the respondent's favour. The motion is therefore dismissed.
31 The applicant should have his costs. Still, absent any statutory provision, a litigant in person is not entitled to recover costs as compensation for loss of time or other disadvantage or inconvenience: Cachia v Hanes (1994) 179 CLR 403 ("Cachia"). In George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 ("George") the Full Court held that the power to award costs conferred by s 43 of the Federal Court of Australia Act does not extend to awarding a litigant, who is not a legal practitioner, any amount for the time spent preparing the case or presenting it in court. But, as the Full Court also observed in George (at [17]), there is nothing in Cachia that would preclude a claim for out-of-pocket expenses, such as filing fees or the costs of copying the appeal books. Recently, Preston CJ in the NSW Land and Environment Court also held that a litigant in person, who is successful in the proceeding, is entitled to be reimbursed for his or her out-of-pocket expenses incurred in and for the purposes of litigating it: Cachia v The Hills Shire Council [2010] NSWLEC 136 at [30].
32 There is, however, no proper basis for the applicant's submission that the respondent's motion was frivolous or vexatious so as to justify his claim for indemnity costs, assuming that the term has any scope for a successful self-represented litigant.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.