CARRIGAN v Administrative Appeals Tribunal
[2013] FMCA 197
•22 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARRIGAN v ADMINISTRATIVE APPEALS TRIBUNAL & ANOR | [2013] FMCA 197 |
| PRACTICE & PROCEDURE – Costs, litigant in person, costs payable to litigant in person where appeal allowed by consent. |
| Administrative Appeals Tribunal Act1975, s.44 Federal Magistrates Act1999, ss.79(2), 79(3) Federal Magistrates Court Rules 2001, r.1.04 |
| Cachia v Hanes (1994) 179 CLR 403 Casley v Casley (Costs) [2010] FamCAFC 189 Croker v Commissioner of Taxation [2003] FCAFC 66 Shepard v Blueberry Farms [2001] FMCA 2 |
| Applicant: | JANE CARRIGAN |
| First Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| Second Respondent: | SECRETARY DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS |
| File Number: | BRG 666 of 2012 |
| Judgment of: | Jarrett FM |
| Hearing date: | 30 January 2013 |
| Date of Last Submission: | 21 February 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 22 March 2013 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondents: | Mr Black |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The respondent pay the applicant’s disbursements associated with the appeal fixed in the sum of $4,108.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 666 of 2012
| JANE CARRIGAN |
Applicant
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
First Respondent
| SECRETARY DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS |
Second Respondent
REASONS FOR JUDGMENT
By order of Collier J made on 17 July, 2012 the applicant’s appeal filed pursuant to s.44 of the Administrative Appeals Tribunal Act1975 against a decision of the respondent was transferred to this Court.
After two appearances in this Court and the making of directions on each occasion, the applicant and the respondent were able to settle the proceedings. On 30 January, 2013 I ordered, with the consent of each party, that the applicant’s appeal be allowed, that the decision of the Administrative Appeals Tribunal dated 2 May, 2012 be set aside and that the matter be remitted to a differently constituted tribunal to be heard and decided again.
However, the costs and disbursements incurred by the applicant in her application remain in dispute between the parties. The applicant seeks an order that the respondent pay her costs and disbursements of the application. The respondent does not oppose an order that the respondent pay some of the applicant’s disbursements in the appeal, but there is a dispute as to the order for costs and some of the disbursements sought by the applicant.
Both parties agree that s.79(2) of the Federal Magistrates Act1999 provides the source of the Court’s jurisdiction to award costs in proceedings before it. The award of costs is in the discretion of the Court: s.79(3) of the Act.
The applicant seeks an order for her “legal costs” and suggests that an order could be framed in the following way:
“The respondent forward payment of “costs” to the applicant that reflect the full fees charged to the respondent by its representing advocates (one barrister, one partner, one special counsel, two x graduate law students) between 30 May 2012 and 30 January 2013.”
The difficulty with the applicant’s argument is that she at all times has represented herself. She is not a lawyer.
Cachia v Hanes (1994) 179 CLR 403 was a case in which the High Court considered the nature and extent of costs that might be awarded to a litigant, who was not a lawyer, for preparing and conducting his or her own case. That case dealt with the position that then existed under the Supreme Court Rules 1970 (NSW) and the Supreme Court Act1970 (NSW). In that case the High Court determined that for the purposes of that Act and Rules, costs did not include time spent by a litigant, who was not a lawyer, in preparing and conducting his or her case. The costs are confined to money payable or liabilities incurred for professional or legal services.
That principle has been applied in this Court in Shepard v Blueberry Farms [2001] FMCA 2 and innumerable other cases. No authority was brought to my attention by the applicant in which any court has made an order for costs such as that sought by her in these proceedings.
Cachia v Hanes (above) has also been applied by other courts, including the Full Court of the Federal Court of Australia (Croker v Commissioner of Taxation [2003] FCAFC 66) and the Full Court of the Family Court of Australia (Casley v Casley (costs) [2010] FamCAFC 189 at [40] – [41]).
The applicant sought to distinguish Cachia v Hanes and to persuade me that an order for costs ought to be made. In particular, she noted that the words “costs” and “disbursements” where they are used in the Federal Magistrates Court Rules 2001 are not the subject of any definition by those Rules. She points to rule 1.04 of the Federal Magistrates Court Rules and notes that “the dictionary” defines the terms used in the Rules. The applicant, in her written submissions, then draws upon the dictionary definition of the words “costs” and “disbursements” in the Macquarie Dictionary to argue her position.
However “The dictionary” referred to in rule 1.04 of the Federal Magistrates Court Rules is the dictionary which appears as part of the Rules (after schedule 3 to the Rules). The dictionary does not define the words “costs” or “disbursements” and so it is to the common law that one must look for the meaning of those words as they have been interpreted in the authorities.
In that respect, one need go no further than Cachia v Hanes for a discussion of the historical context in which the words costs and disbursements have been used (see pages 410 – 417 of that case).
The second basis upon which the applicant says that Cachia v Hanes should be distinguished is that the second respondent in the present matter is a model litigant and has not behaved as such. She points to a number of matters to bear out her complaints about the conduct of the second respondent and his lawyers, but in my view there is no basis upon which Cachia v Hanes could be properly distinguished from the present case. An examination of the conduct of the second respondent or his lawyers cannot assist to distinguish Cachia v Hanes from the present case because the decision in Cachia v Hanes did not depend upon the conduct by the respondent to the costs application. That decision turned upon the content and meaning of “costs” as it was used in the relevant rules in that case.
In my view the applicant’s claim for an order for “costs” fails.
The second respondent does not oppose an order that it pay the applicant’s disbursements and in particular her out of pocket expenses being the costs of a transcript $1,026.45, the filing fee on the court application of $3,007 and general administration expenses of $75 (total $4,108). The applicant, however, also claims two return airfares from Darwin to Brisbane for the directions hearings and hotel accommodation for two nights in connection with those directions hearings. The respondent opposes an order for costs in respect of those travelling expenses.
Cachia v Hanes is also authority for the proposition that travelling expenses are not recoverable as out of pocket expenses or disbursements in legal proceedings by litigants in person. I was taken to no authority which would suggest that that proposition was wrong.
In the circumstances I order that the respondent pay the applicant’s disbursements associated with the appeal fixed in the sum of $4,108.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 22 March 2013
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