Baker v Dubickas (No. 2)[2021] QDC 236

DISTRICT COURT OF QUEENSLAND

Reasons for decision

1. [1]
   The substantive judgement and reasons were delivered on 26 August 2021.
2. [2]
   At the time, an order was made that, subject to any further order of the court in the event submissions are made within 14 days, the plaintiff pay the defendants’ costs of the proceeding (including the application dealt with in these reasons) to be assessed on a standard basis.
3. [3]
   On 9 September 2021, on the fourteenth day, submissions were filed on behalf of the plaintiff in the court and by email to my associate (copied to the email address used by the first and second defendants in the proceedings and the email address of the solicitors for the third defendant) in relation to the proposed costs order to be made.
4. [4]
   It was accepted that any order for costs in the proceedings would be made under s 15 of the Civil Proceedings Act 2011 (Qld) and the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  On behalf of the plaintiff, it was submitted that the appropriate order was for the plaintiff to pay the third defendant’s costs of the proceeding on the standard basis, to be assessed if not agreed. It was contended, in reliance on the High Court decision in Cachia v Hanes,^[1] that self-represented parties are not entitled to costs.
5. [5]
   In Cachia, the plurality reaffirmed the original basis upon which costs are ordinarily awarded, namely an indemnity for legal costs actually incurred.^[2]  The court was considering an application pursuant to the New South Wales Rules of Court by a self-represented litigant, Mr Cachia, on a taxation of costs for the payment of costs to compensate for his loss of time spent in preparing and conducting his case and for out of pocket expenses, including travel expenses. In considering his application, the majority observed:

“To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.

This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester introduced a notion of costs to the common law that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed on the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, ‘but not to the costs and expences of his travel and loss of time’.”^[3]

6. [6]
   In Merrin v Commissioner of Police,^[4] the Court of Appeal in referring to the decision of Cachia, accepted that a self-represented litigant could be awarded costs but limited to costs of filing and other court fees. Merrin (No. 2) involved an appeal under the Justices Act 1886 (Qld) from a decision of the Magistrates Court to the District Court.
7. [7]
   In Freitag & Anor v Bruderle & Anor,^[5] Henry J in considering an application by a self-represented litigant for the payment of certain out of pocket expenses including photocopying fees, transcript fees, postal fees, company and other search fees, travel expenses, expert witness expenses and a facsimile fee, considered that he was bound by the approach of the Court of Appeal in Merrin (No. 2) unless he was able to identify a permissible broader power to award costs in the Supreme Court. He observed that the UCPR certainly does not suggest a permissible power which is broader; in fact, he considered it arguably suggests an even more limited approach ought be taken.
8. [8]
   Henry J concluded that the self-represented litigant was not entitled to a category of costs any broader than that which was contemplated in Merrin (No. 2), which he considered was limited to namely the costs of filing and other court fees.  In so limiting the costs, the distinction his Honour drew was between filing and other court fees, on the one hand, and irrecoverable expenses, on the other hand, on the basis that the costs of filing and other court fees “are objectively required and there can be no issue as to their appropriate quantum.”^[6]
9. [9]
   In Chiropractic Board of Australia v Jamieson,^[7] Jackson J in considering a claim for costs under the now repealed s 221 of the Supreme Court of Queensland Act 1995 (Qld) and the UCPR considered that the expense of obtaining a “transcript”, if one were required to be obtained by a self-represented litigant, would be recoverable.  His Honour observed that “it defies any logic or rational explanation to contend that the expense of a transcript is recoverable if paid by a lawyer but not if paid by a litigant.”^[8]
10. [10]
    Further, Jackson J did not agree with the distinction drawn by Henry J in Freitag, as representing a basis for determining the scope of recoverable expenses as “costs” under the former s 221 of the Supreme Court Act 1995 (Qld) or the current s 15 of the Civil Proceedings Act 2011 (Qld).  His Honour referred to the comments he had made earlier in the decision, in referring to the expense of obtaining a transcript, and relied on the reasoning in Von Reisner v Commonwealth of Australia (No. 2)^[9] where the Full Court of the Federal Court of Australia concluded that “actually, necessarily and reasonably incurred out of pocket expenses” are allowable under s 43 of the Federal Court of Australia Act 1977 (Cth) as expenses incurred by a litigant in person.  Jackson J observed that Von Reisner was referred to in Merrin (No. 2) without disagreement.^[10]  His Honour concluded that, in his opinion, the transcript and printing and photocopying expenses are not disallowable, per se, because they are expenses incurred by Jamieson as a litigant in person.  In considering other expenses, his Honour’s view was that “travelling and parking to file documents in court” would seem to be actual, necessary and (depending on the amount) reasonable expenses and “telephone, postage and petties” may or may not have been expenses necessary or reasonable in amount, depending on the circumstances.^[11]
11. [11]
    I agree with the observations of Jackson J, and agree that, depending on the circumstances, out of pocket expenses of a litigant in person should be recoverable, in a broader sense than that permitted in Freitag, provided they are shown to be necessarily or properly incurred and the amount claimed proven to be reasonable.
12. [12]
    As was recognised by Henry J in Freitag, whether a recipient of a costs order has in fact incurred any allowable costs, in that sense, is a matter to be proved at an ensuing assessment. 
13. [13]
    On any assessment, the first and second defendants, as self-represented litigants will be required to prove the incurrence of permissible costs within the more limited scope permitted.  If such costs are proven, then it is appropriate that the plaintiff pay them.
14. [14]
    Since writing these reasons, last night my associate received an email from the first and second defendants stating they at one stage had legal representation and had incurred costs in the process.  In my view, the first and second respondents are entitled to any such costs proven to have been incurred, to be assessed on the standard basis.
15. [15]
    Accordingly, it is appropriate to make an order that the plaintiff pay the first, second and third defendants’ costs to be assessed on a standard basis, if not agreed.