Casley & Casley (Costs)
[2010] FamCAFC 189
•23 September 2010
Family Court Of Australia
| CASLEY & CASLEY (COSTS) | [2010] FamCAFC 189 |
| FAMILY LAW - COSTS – Where a litigant in person may seek an order for costs pursuant to s 117(2) of the Family Law Act 1975 (Cth) – The meaning of “payments” as written in the note to rule 19.01 of the Family Law Rules 2004 (Cth) – The definition of “costs” – The definition of “expenses” – Schedule 3 of the Rules – Where a litigant in person may seek an order for costs – Where a litigant in person will not recover an amount for time spent in preparing and conducting their case – Where a litigant may recover disbursements being out of pocket expenses which would have been recoverable had they been legally represented |
| B and P [2000] FamCA 392 (5 May 2000) Cachia v Hanes (1994) 179 CLR 403 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Oscar & Traynor [2008] FamCAFC 158 Penfold v Penfold (1980) 144 CLR 311 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172 |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules 2004 (Cth) CCH Australia, Australian Family Law & Practice, vol 2 (at 61-370) |
| APPELLANT: | Ms Casley |
| RESPONDENT: | Mr Casley |
| FILE NUMBER: | DGC | 1760 | of | 2007 |
| APPEAL NUMBER: | SA | 4 | of | 2009 |
| DATE DELIVERED: | 23 September 2010 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 December 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1371 |
REPRESENTATION
| THE APPELLANT: | Self-Represented |
| COUNSEL FOR THE RESPONDENT: | Ms P. Samson |
| SOLICITOR FOR THE RESPONDENT: | Peninsula Law |
Orders
The Husband pay the Wife’s costs of the appeal.
The costs referred to in order 1 hereof be assessed in an amount of $45.00 and be paid by the Husband to the Wife within 21 days of the date of these orders.
The application by the Husband for costs be dismissed.
The application by the Husband for a certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
The application by the Husband for a certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Casley & Casley (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA |
Appeal Number: SA 4 of 2009
File Number: DGC 1760 of 2007
| Ms Casley |
Appellant
And
| Mr Casley |
Respondent
Reasons For Judgment
Introduction
On 18 June 2010 I pronounced judgment allowing an appeal against orders made by Federal Magistrate Phipps on 17 December 2008. Ms Casley (“the Wife”) was the Appellant and the Respondent was Mr Casley (“the Husband”).
On 18 June 2010 I made the following orders:
1. The appeal be allowed.
2. The child support departure applications be remitted for rehearing before a Federal Magistrate other than Federal Magistrate Phipps.
3. Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by the Appellant by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other parties within 28 days of the date hereof.
4. Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other parties.
5. Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other parties within a further seven days.
6. Each party endorse on the cover sheet of any submissions filed pursuant to orders 3, 4 and 5, the date upon which a copy of that submission was served on the other parties.
On 14 July 2010 the Wife filed a document titled “submissions as to costs”. Under the heading “[c]osts incurred in relation to the appeal by the Appellant” the Wife contended the following:
Photocopying $45.00
Printing ink $23.00
Fax $39.00
Postage $34.00
Travel $5.00
Stat. Dec. $2.00
Appeal Court before Justice O’Ryan
26/3/2009, 15/7/2009, 26/8/2009
Attendance by Appellant
(Casual relief teacher day wage)
3 @ $243.80 $731.40Preparatory days 2 @ $243.80 $487.60
Hearing before Riethmuller FM
24/6/2010
Attendance by Appellant $250.00Total $1617.40
Attached to the submissions of the Wife were copies of receipts for photocopying, printing ink, faxing, postage, travel and for a statutory declaration form. Also attached to her submissions was a letter from the Principal and Human Resources Manager of M College which stated that the Wife “suffered a loss of earnings due to her unavailability for casual teaching on the following dates” and listed the dates and amounts as noted in the table above.
On 15 July 2010 the Husband filed a document titled “submissions as to costs” and made the following submissions:
1. The Husband is the Respondent to the Appeal filed by the Wife in this matter.
2. The appeal was heard before His Honour Justice O'Ryan on 26 August 2009.
3. His Honour delivered the Judgment on 18 June 2010.
4. His Honour allowed the appeal on grounds that the Federal Magistrate had erred.
5. As a result of the Appeal Application filed by the Wife the Husband has incurred significant legal costs.
6. Due to the complexity of the matter the Husband engaged a Solicitor and Counsel to prepare documents on his behalf and to represent him.
7. The wife was not represented. She works in part time employment represented herself and undertook the preparation and conduct of the appeal herself and in her own time. There was an enormous amount of documentation to respond to at relatively short notice.
8. The order of the Court made 26 March 2009 granted the Wife an adjournment on the grounds she wanted to seek representation by Victoria Legal Aid. The Husband's costs were reserved.
9. The Husband received a small grant of assistance from Victoria Legal Aid in the sum of $2,822.00. He was required to contribute the sum of $1,389.00 towards the grant.
10. The Husband personally paid some of the other costs and has outstanding amounts owed to Peninsula Law and to Ms Devine of Counsel for costs incurred after the matter was remitted and listed before Federal Magistrate Reithmuller on 24 June 2010.
11. The Husband personally paid the sum of $1,185.00 to Mr Andrew Crozier Durham and the sum of $3,700 to Mr Clarke. Additionally the Husband paid a contribution to Victoria Legal Aid of $1,389.00.
12. Although the appeal was allowed the success of the Appeal was on the basis that the Federal Magistrate had erred and not through a fault of the Husband.
13. The Husband seeks costs as follows:
(a)THAT the Wife pay the costs incurred by the Husband for the appeal on a Solicitor Client basis;
(b)THAT the Wife pay the costs of representation incurred in the appeal by the Husband on a party party basis;
(c)THAT an appeals cost Certificate be granted for the Husband's Representation at the Federal Magistrates Court at Melbourne on 24 June 2010 after the matter was remitted and listed before Federal Magistrate Reithmuller.
14. The following documentation is annexed:
I.Invoice of Gordon and Jackson — Account of Mr Andrew Crozier Durham of Counsel;
II.Invoice of Gordon and Jackson — Account of Mr Clarke of Counsel;
III.Account of peninsula_law;
IV.Tax Invoice to Victoria Legal Aid;
V.Invoice of Ms Kath Devine of Counsel;
VI.Invoice of Victoria Legal Aid;
VII.Statements of the Commonwealth Bank.
On 30 July 2010 the Wife filed a document titled “notice of objection – submissions as to costs; response to [the Husband’s] claims for costs”. She said:
There is a lot of talk and legal action - particularly in England it seems, in response to bullying. As a teacher it is my professional duty to ensure that it does not go on in my class room or in the areas in which I do yard duty.
And yet, within the family court, my children and I have been victim to it- perpetrated by both my ex-husband and his legal professionals and the lengthy court process it self. It is now being put to you to put a stop to it within the huge financial system that is played out in the Family Court. This can be achieved by awarding costs and penalties, that will relieve the public purse, against the party that refused to comply with repeated requests to comply with that most basic court dictate of “full and frank disclosure”.
Non-compliance with full and frank disclosure, of all company financial details, has resulted in this costly and protracted court case and appeal process. This has been a case of extreme financial and emotional bullying. I request that a stop be put to such tactics. I am indeed a self-litigant- through financial necessity, and this process has cost me money. Money that I have already requested reasonable recompense for.
Legal representation know the “tricks” and the leniency, it would seem, of the Family court in false representation and /or non-disclosure on behalf of their clients. Time, emotional turmoil and financial distress of the children and the complying parent result as the perpetrators stall and wait for their adversary’s strength, financial resources and resilience to give way whilst information is deliberately with-held.
A bully and the one that does nothing to dissuade bullying tactics can be seen as equally culpable.
It seems right and equitable that such persons and such a system be held accountable to the bullied victim within the justice system. I put forward- in non-legal terms, that the individual be .fined with all costs and an equal “donation” be paid to the Legal Aid system be put in place. And that all monies received by their legal team likewise be “donated” to Legal Aid along with a fine for knowingly advocating non-disclosure and/or not enforcing full disclosure prior to the first Registrar appointment or, at least, being given two weeks prior to the first court date.
This appeal was essentially about child support not being given due to the with-holding of funds and the with-holding of company financial details (as previously discussed in Submissions As To Costs, prepared by [the Wife] served by email 12 July 2010 and post 13 July 2010). Financial details that would have given the Registrar, back on 24 September 2007, and both parties, a true indication of the child support to be given to the [Casley] children to ensure a just and equitable decision on then and future child support.
1 respectfully request that such bullying is put a stop to- now and in the future. Please award costs against and fines to the individual and their legal party to ensure such tactics are actively dissuaded in future cases.
On 30 July 2010 the Husband filed a document titled “notice of objection – submissions as to costs” which stated the following:
The Husband objects to the application for costs filed by the Wife on 14 July 2010.
1. The Husband relies on CHAPTER 19, PART 19.1 of the Family Court Rules.
Part 19.01(20 [sic] states A party may only recover costs from another party in accordance with these rules or an order.
Note A self represented party is not entitled to recover costs for work done for a Case (except work done by a lawyer) but, if so ordered, may be entitled to some payments.
The wife was a self represented litigant throughout the proceedings.
2. The matter was remitted on the grounds that the Federal Magistrate had erred and through no fault of the Husband.
The issues in this case are very limited. However, the Husband has raised an objection to the Wife’s application and I will have to deal with the issue that the objection raised.
Background
In my reasons delivered on 18 June 2010 I said at [103]:
As I have observed a further amended notice of appeal was filed by the Wife on 14 July 2009. The Wife is appealing against orders 3(a) and 3(b) being the orders in relation to departure from administrative assessment of child support for the three children. The first order provided that for all periods up to 17 December 2008 the child support income of the liable parent is varied so that the arrears of child support, after taking into account all amounts paid by the liable parent up to 17 December 2008 is nil. The second order was that from 17 December 2008 to 31 December 2009 the child support income of the liable parent is varied to $30,000.
There were 38 grounds of appeal relied upon by the Wife and after dealing with the grounds I observed at [178]:
As I have already observed, in my view it is clear that the Wife complains that the Federal Magistrate was in error in relation to his findings as to the income and earning capacity of the Husband. This complaint is articulated in different ways in each of the grounds of appeal. There was an issue as to whether the Husband fulfilled his obligation to make a full and frank disclosure of his income and earning capacity such as to enable the Court to safely reach a concluded view about such matters. The obligation imposed on the Husband also required him to produce documents that would corroborate his contentions.
I then dealt with various topics being motor vehicle expenses, telephone and other expenses, depreciation expenses and the income and earning capacity of the Husband. I concluded:
226. In conclusion, I am of the view that the Federal Magistrate was in error in relation to his findings as to the income of the Husband. The Federal Magistrate failed to adequately consider the evidence in relation to undisclosed earnings, the financial position of the Company, the evidence as to the earnings in April / May 2008 and the failure of the Husband to produce relevant documentary or other evidence. The Federal Magistrate also failed to adequately consider whether in the circumstances the Husband had failed to satisfy his obligation to make a full and frank disclosure of his financial circumstances.
227. I am also of the view that the Federal Magistrate was in error in relation to his finding as to the earning capacity of the Husband. He failed to give adequate reasons as to why he was of the view that the Husband did not have the skills, qualifications and experience to earn a much greater income than $125 per day gross either as a truck driver or a concreter.
228. I also observed that in his reasons at [61] the Federal Magistrate said that the Wife did not seek arrears and the Husband did not seek an order that “might mean a repayment”. The Federal Magistrate however said “about a third of the Husband’s wage is being garnished [sic] which means that he is paying at a higher rate than with the child support income of $30,000”. The Wife submitted, and I agree, that this was an error. The Child Support Agency material showed a payment of only $246 for child support in 2007 and $600 in 2008.
Relevant Principles
General
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs”.
Section 117(2) of the Act provides that if, in proceedings under the Act the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub secs (2A), (4) and (5), and the applicable rules, make such order as to costs whether by way of interlocutory order or otherwise, as it considers just.
The term “costs” is not defined in the Act. However in Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172 the Full Court observed at paragraph 67:
We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
Section 117(2A) of the Act provides that in considering what order, if any, should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (per Kay, Warnick and Boland JJ) referring to s 117(2A) said at 130:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311 in joint reasons Stephen, Mason, Aickin and Wilson JJ said at 315-16:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
As to the nature of the hearing of an application pursuant to s 117 of the Act their Honours said at 315:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
Section 123(1)(g) of the Act provides that the Judges, or a majority of them, may make Rules of Court not inconsistent with this Act, providing for or in relation to the practice and procedure to be followed in courts exercising jurisdiction under the Act, and for and in relation to all matters and things incidental to, any such practice and procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts prescribing matters relating to the costs of proceedings, including solicitor and client costs and party and party costs, and the assessment or taxation of those costs.
There are various machinery provisions within Chapter 19 of the Family Law Rules 2004 (Cth) (“the Rules”). Chapter 19 regulates the costs between parties for applications in family law cases.
Rule 19.01 of the Rules deals with the application of Chapter 19 and provides:
(1) Subject to subrule (3), this Chapter:
(a) applies to costs for work done for a case, or in complying with pre-action procedures, in relation to a fresh application, paid or payable by one party to another; and
(b) creates a duty for lawyers to give information about costs to their clients.
(2) A party may only recover costs from another party in accordance with these Rules or an order.
Note A self-represented party is not entitled to recover costs for work done for a case (except work done by a lawyer) but, if so ordered, may be entitled to recover some payments.
(3) This Chapter does not apply to costs in any part of a case in which a Family Court is exercising its jurisdiction under section 35 or 35B of the Bankruptcy Act.
In the dictionary to the Rules “costs” are defined to mean “an amount paid or to be paid for work done by a lawyer, and includes expenses”. “Costs” was also defined in Order 38, rule 1 of the Family Law Rules 1984 (Cth) to include fees and disbursements. In B and P [2000] FamCA 392 (5 May 2000) the Full Court (per Holden, Coleman & Chisholm JJ) observed at paragraph 31: “As this Court pointed out in S V A Solicitor [(1998) Fam LR 641], there is no reason to think that there is anything in s 117 or in the Act generally to suggest that the words “costs” in s 117 has other than its usual meaning”.
The term “expenses”, which is included in the definition of “costs” in the dictionary to the Rules, is also not defined in the Act and is not a term which is used in s 117 of the Act. However, “expenses” is defined in the dictionary to the Rules to mean “an amount paid to a third party, other than a lawyer, for work done in a case or services provided by a party”. The term “expenses” was referred to by Hayne J in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 219.
Rule 19.02 of the Rules provides that interest is payable on outstanding costs at the rate mentioned in r 17.03.
Rule 19.08 of the Rules provides:
(1) A party may apply for an order that another person pay costs.
(2) An application for costs may be made:
(a)at any stage during a case; or
(b)by filing an Application in a Case within 28 days after the final order is made.
(3) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.
Part 19.5 of the Rules deals with the calculation of costs. Rule 19.18 provides:
(1) The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
Example
For paragraph (1) (c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.
(2) If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.
(3) In making an order under subrule (1), the court may consider:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre-action procedures; and
(f)expenses properly paid or payable.
Division 19.6.2 of Chapter 19 provides an assessment “process”.
Schedule 3 to the Rules provides an itemised scale of costs for work done.
Amounts that can be recovered as costs
As seen, the Husband contended that the Wife’s application for costs should be dismissed because a note to r 19.01 of the Rules provides that a self-represented party is not entitled to recover costs for work done for a case except for work done by a lawyer. The note also states “but, if so ordered, may be entitled to recover some payments”. There is no definition of “payments” in the dictionary. However, I observe that in CCH Australia, Australian Family Law & Practice, vol 2 (at 61-370) “out of pocket expenses, fares, parking fees and loss of wages” are given as examples of such “payments”.
Schedule 3 to the Rules, which as I have observed provides an itemised scale of costs, commenced on 1 July 2006 and applies generally to work done on or after that date. Schedule 6 to the Rules applies to party and party costs that are not covered by Chapter 19 of the Rules. Schedule 6 only applies to costs for work done for a case that commenced before 1 July 2008. I observe that a note to paragraph 6.01(3) provides that a self-represented party is not entitled to recover costs for work done for a case except for work done by a lawyer “but, if so ordered, may be entitled to recover some payments”.
In Cachia v Hanes (1994) 179 CLR 403 the High Court considered Part 52, r 23(2) of the Supreme Court Rules 1970 (NSW) which provided that on a taxation of costs on a party and party basis “there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed”. Schedule G to the Supreme Court Rules contained the relevant scale of costs. The majority (Mason CJ, Brennan, Deane, Dawson and McHugh JJ; Toohey and Gaudron JJ dissenting) held at 409 that costs for which r 23(2) provided were confined to money paid or liabilities incurred for professional legal services and did not include for time spent by a litigant who was not a lawyer in preparing and conducting his case. The majority observed at 410:
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 ((4) 6 Edw.I c.1.) introduced the 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 of 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 travell and losse of time”. (citations omitted)
I also observe that in Cachia the majority observed at 414 that:
Taxation is to take place, not at large, but “on a party and party basis”. Taxation on a party and party basis is required to be in accordance with the relevant table in Sched G and that makes no provision for the reimbursement of a litigant for time lost in the preparation or presentation of his case. It does provide for solicitors' costs which have been incurred.
In relation to disbursements in Cachia the majority said at 417:
The disbursements claimed by the appellant and disallowed upon taxation were, on the one hand, travelling expenses in addition to a witness's fee for preparation and, on the other hand, travelling expenses to hear judgment. Either the appellant was entitled to the witness's fee or he was not; he was not entitled to travelling expenses in addition to or in lieu of the fee. And since the appellant was not entitled to any recompense for his appearance in court to hear judgment, it was, we think, within the discretion of the Taxing Master to disallow any travelling expenses as an out-of-pocket expense incurred for that purpose. They were not an out-of-pocket expense which would have been recoverable by him or his solicitor in this case had he been legally represented. (emphasis added)
There is a very instructive discussion of Cachia in B and P. In that case the Full Court observed:
38. At least one sentence in the majority judgment, taken out of context, might be thought to mean that orders cannot be made for expenses other than expenses incurred by a legal practitioner. But it is clear from the treatment of the appellant’s disbursements, brief though it is, that this is not so. It seems from the sentence from Cachia quoted in the previous paragraph that as a general principle litigants in person cannot recover such expenses where, had they been represented, they would not have been able to recover them. In other words, being unrepresented does not expand the range of recoverable disbursements.
39. The decision in Cachia shows, in our view, that “costs” within s 117 can include disbursements, or out of pocket expenses, paid directly by an unrepresented litigant. (footnotes omitted)
More recently in Oscar & Traynor [2008] FamCAFC 158 the Full Court (per May, Thackray & Benjamin JJ) also discussed and applied Cachia and observed:
85. There has been considerable case law since Cachia v Hanes, much of which is unreported, dealing with claims for recovery of “expenses” as “costs”. Those expenses which have been found to be properly recoverable include:
a) court fees (see, for example, the discussion of the Full Court in B and P [2000] FamCA 392 at [50]; and also the Family Law Regulations 1984, reg 11(6)(b));
b) transcript costs, on the basis that they cannot also be claimed as costs in connection with the trial (see, for example, the discussion of the Full Court in W (deceased) and W and Ors [2004] FamCA 319 at [41]);
c) expenses for serving documents (see, for example, Winter v Fleeton [2002] WASCA 73 at [23]);
d) freedom of information fees (see, for example, Pittwater Council vBolitho [2007] NSWLEC 355 at [159]);
e) fees for searching registers, such as an ASIC search fee (see, for example, Re Sullivan and Department of Industry, Science and Technology (1998) 51 ALD 767 at [45]);
f) appeal book binding (see, for example, Winter v Fleeton [2002] WASCA 73 at [23]);
g) disbursements incurred by a litigation guardian (see, for example, Step vNorthern Territory (2007) 20 NTLR 141); and
h) incidental expenses in relation to photocopying, postage and telephone and facsimile transmissions (see, for example, Shephard v BlueberryFarms of Australia (Corindi) Ltd (2001) 162 FLR 339 at [66]; Cary v Owners of Strata Plan No. 7241 [2002] FMCA 18).
There are, of course, also many cases in which a litigant has been awarded costs relating to the legal advice obtained in preparation for a hearing although they did not have legal representation at the hearing itself.
87. Expenses which have been held not to be recoverable include:
a) travelling costs (see, for example, the discussion of the Full Court in W (deceased) and W and Ors (supra at [49]); and also Farquar and Farquar (No 2) [2008] FamCA 682; Cachia v Hanes (supra) at p 417);
b) parking costs (see, for example, H & H [2006] FamCA 257 at [9]); and
c) meals (see, for example, Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 at [14]).
In my view, it is well established that a litigant in person may seek an order for costs pursuant to s 117(2) of the Act. Such a litigant will not recover an amount for time spent in preparing and conducting his or her case. However, such a litigant may recover disbursements being out of pocket expenses which would have been recoverable had he or she been legally represented.
Application By The Wife
I will first deal with the application of the Wife. In the circumstances, I do not propose to deal with each of the matters in s 117(2A) of the Act: see Penfold. I observe that neither party made any submissions in relation to the relevant matters in s 117(2A).
The Wife’s appeal was allowed and thus the Husband was wholly unsuccessful in the proceedings. The Wife has therefore established a justifying circumstance.
In my reasons for judgment I found the Federal Magistrate made errors in relation to motor vehicle expenses; telephone and other expenses; depreciation expenses; the income and earning capacity of the Husband and the assessment of the Husband’s income at nil. I also take into account the conduct of the Husband. However, the matter to which I attach the most significant weight is s 117(2A)(e) of the Act.
I propose to make an order that the Husband pay the costs of the Wife.
As I have observed, the Wife is seeking the following amounts:
· Photocopying $45.00
· Printing ink $23.00
· Fax $39.00
· Postage $34.00
· Travel $5.00
· Stat. Dec. $2.00
· Loss of wages $731.40
· Loss of wages on Preparatory days $487.60
· Hearing before Riethmuller FM $250.00
Total $1617.40
The costs will only include the amount claimed for photocopying.
Application By The Husband
I am not persuaded that the Husband has established a justifying circumstance and thus his application for costs will be dismissed.
I am also not prepared, in the circumstances of this case, to make orders pursuant to s 6 and s 8 of the Federal Proceedings (Costs) Act1981 (Cth). I am going to make an order for costs in favour of the Wife.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan on 23 September 2010.
Associate:
Date: 23 September 2010
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