Ban v Loxton (No. 2)[2015] QDC 154

DISTRICT COURT OF QUEENSLAND

1. [1]
   The second and third respondent seek orders in relation to costs for professional costs incurred, pursuant to ss 226 and 232A of the Justices Act 1886 (“Justices Act”). 

2. [2]
   Such costs may only be ordered on the basis that they are considered just under s 226 of the Justices Act.^[1]  In exercising that discretion, s 232A(1) provides a limit as to the costs which may be awarded, by reference to Schedule 2 of the Justices Regulation 2004 (“Justices Regulation”), subject to the exercise of a further discretion, pursuant to s 232A(2), to exceed the amount allowed for an item under the scale, where there is demonstrated special difficulty, complexity or importance. 

3. [3]
   In this case, the second and third respondents only seek costs according to the scale.

Background

4. [4]
   On 22 May 2015, after the decision to dismiss the applicant’s application for leave to appeal out of time was handed down, the second and third respondents sought $3,900 professional costs in accordance with the scale in Schedule 2, Part 2 of the Justices Regulation and a 20% increase pursuant to item 4, Part 1 of Schedule 2 of that Regulation. 

5. [5]
   There was no appearance by the applicant that day.

6. [6]
   After hearing submissions I ordered that the applicant pay a total of $2,000 to the second and third respondents, such order being effective from 4 p.m. on 26 May 2015, unless the applicant provided written submissions on costs.

7. [7]
   The applicant filed and served written submissions on costs before that time.

Professional costs sought

8. [8]
   The second and third respondents now seek $2,000 scale costs determined as follows:

• 12 May 2015 - $250, on the basis that this constituted “other court attendance” and not a “hearing” under the scale with no 20% increase allowed;
• 15 May 2015 - $1,500, for a hearing with no 20% increase allowed; and
• 22 May 2015 - $250, for “other court attendance” with no 20% increase allowed.

9. [9]
   Costs are awarded on a compensatory, rather than punitive, basis.^[2] 

10. [10]
    In Scanlon v Queensland Public Service,^[3] Andrews SC DCJ considered various factors relevant to the “just” exercise of the discretion under s 226 of the Justices Act.  Upon consideration of those factors which are relevant to this matter, I conclude that there is no disentitling conduct on behalf of the second and third respondents and in my view the applicant has not raised an arguable point. 

11. [11]
    The second and third respondents have submitted that there is nothing in the applicant’s submissions that would preclude the making of an order for scale costs pursuant to ss 226 and 232A of the Justices Act. They submit that, in fact, the applicant’s submissions do not address those provisions at all.  I agree. 

12. [12]
    The applicant has submitted that costs should not be awarded against her, as a self-represented litigant, on the basis of the High Court decision in Cachia v Hanes.^[4]  That case however, involved a successful self-represented litigant who was an engineer and who was held^[5] not to be entitled to claim costs as compensation for the loss of his time spent in the preparation and conduct of his case.  This is not analogous to the current situation where the applicant was unsuccessful in her application for leave to appeal out of time and where the successful second and third respondents were represented by lawyers, and are entitled to claim professional costs under the Justices Act and Justices Regulation for legal professional work performed. Accordingly, Cachia v Hanes provides no support for the applicant’s submission. 

13. [13]
    Courts routinely make orders for costs against unsuccessful self-represented litigants. By way of example, the recent case of Markan v Queensland Police Service^[6] was a case in which the Court of Appeal made an order that an unsuccessful self‑represented litigant should pay costs on the indemnity basis. 

14. [14]
    The applicant has also submitted that s 7 of the Civil Proceedings Act 2011 and s 64 of the Judiciary Act 1903 (Cth) are relevant to this issue and to the Court’s determination of an award of costs in this matter.  I disagree. Neither section is of any relevance to the issue. 

Order

15. [15]
    The applicant is ordered to pay costs totalling $2,000.00 to the second and third respondents.