Farquar & Farquar (No. 2)

[2008] FamCA 682

FAMILY COURT OF AUSTRALIA

FARQUAR & FARQUAR (NO. 2) [2008] FamCA 682

FAMILY LAW – COSTS – application by father seeking costs incurred successfully pursuing contravention application against mother – father unrepresented – consideration of costs able to be recovered by unrepresented litigants – Cachia v Hanes and Anor (1994) 179 CLR 403 cited – application for costs dismissed.

Family Law Rules 2004 (Cth) r 19.01

Cachia v Hanes & Anor (1994) 179 CLR 403
B and P [2000] FamCA 392
H and H [2006] FamCA 257

APPLICANT: Mr Farquar

RESPONDENT: Ms Farquar

FILE NUMBER: DNC 431 of 2007

DATE DELIVERED: 1 August 2008
(In Chambers)

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 22 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Father in Person

COUNSEL FOR THE RESPONDENT: MS HOLTHAM

SOLICITOR FOR THE RESPONDENT: DAVID CHARLES STORY

Orders

1. That the father’s application for costs made on 6 June 2008 in relation to his Application for Contravention filed on 27 September 2007 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Farquar & Farquar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 431  of 2007

MR FARQUAR

Applicant

And

MS FARQUAR

Respondent

REASONS FOR JUDGMENT

1. On 6 June 2008, I heard and determined the father’s Application for Contravention filed 27 September 2007.  My finding was that the mother had contravened 18 counts of alleged contravention of Orders made in this Court on 19 June 2000.

2. The father then made an application for costs, an application which was initially adjourned before Justice Strickland on 12 June 2008 and then before me on 22 July 2008.  On 10 June 2008 the father filed an Affidavit detailing the expenses and costs that he had incurred in pursuing his successful Application for Contravention against the mother.  Those expenses and costs fall into the following categories:-

   2.1.Loss of wages;

   2.2.Motor vehicle operating expenses; and

   2.3.Fuel costs.

3. Pursuant to the Family Law Rules 2004, “costs” are defined in the dictionary as:

   “an amount paid or to be paid for work done by a lawyer and includes expenses”

4. Rule 19.01 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.

   .....”

5. The leading decision on the question of the recovery of costs by unrepresented litigants is the decision of the High Court in Cachia v Haines & Anor [1994] 179 CLR 403. An action brought against the unrepresented appellant in the Supreme Court of New South Wales was dismissed. The appellant claimed costs, many of which were disallowed by the Master on taxation. On appeal against the “disallowance of his claim for compensation for the loss of time spent in the preparation and conduct of his case and his out of pocket expenses, being travelling expenses, associated with the preparation of his case” the High Court held that the appellant cold not obtain an order in relation to the time spent preparing the case.

6. This decision has been followed by a number of Family Court decisions, including in B and P [2000] FamCA 392 in which the Full Court confirmed the principle that an unrepresented litigant is unable to be reimbursed for time spent in the preparation and arguing of an appeal. In B and P (supra), the mother sought costs for her expenses in travelling to Western Australia to take possession of the child after a Recovery Order had been executed.  The Full Court further discussed the decision in Cachia v Haines & Anor and discussed the position on the question of the recovery of costs and disbursements by unrepresented litigants:

   “33.After a detailed review of the authorities, the majority of the High Court held that the appellant could not obtain an order in relation to the loss of time spent in preparing the case:

   ‘The ‘costs’ provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case.  They are confined to money paid or liabilities incurred for professional legal services.  It is only in that sense that the rules speak of ‘costs’.’

   34.The majority in Cachia’s case went on to say that the relevant rules containing the scale of costs did not indicate that there was provision for costs ‘other than costs in the conventional sense, namely remuneration for work performed by a solicitor or a solicitor’s clerk.  Indeed, the clear indications are that the costs provided for are costs of that kind.

   35.The decision is of course is [sic] binding on this court.  We do not accept the submissions of the appellant insofar as they suggest that, contrary to the majority decision, we should allow the exception relating to the solicitor-litigant to displace the general rule.

   36.As Mr Fitzgerald stressed in his submissions, the present appeal relates to a claim for disbursements in the sense of expenses actually paid, rather than a claim for preparation of the case.  Although the main issue in Cachia’s case related to the claim for time spent in preparation, the decision is also relevant to the issue that arises in the present appeal, namely the extent to which a litigant in person can claim for disbursements.

   37.In relation to disbursements, the majority held that insofar as the appellant needed to come to court as a witness, he could claim travelling expenses.  As to his travelling expenses to hear the judgment, it was within the discretion of the taxing officer to disallow the expenses because ‘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”.

   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.

   40.The proposition that unrepresented litigants can recover at least some types of out of pocket expenses is consistent with the authorities.  Thus in a passage that seems to have been approved by the majority of the High Court, Brett MR said (referring to an unrepresented litigant who is not a solicitor):

   ‘When an ordinary litigant appears in person, he is paid only for costs out of pocket. ..  He has to pay the fees of the court,  that is money paid out of pocket; but for loss of time the law will not indemnify him.’

   41.Similarly, in the line of authorities dealing with the exception relating to solicitor-litigants, the question whether they ‘should recover more than their out of pocket expenses’ presupposes that as ordinary litigants they might recover their out of pocket expenses.  In a passage quoted by the majority in Cachia, Sir Gordon Willmer said:

   ‘What a successful party who has got an order for costs is entitled to falls, as is well known, under two headings.  One heading covers his disbursements; that is to say, money which he has actually had to pay out to other people, such as witnesses, counsel, professional advisers and so forth.  The other heading is described as ‘costs’.  This is intended to cover remuneration for the exercise of professional legal skill …  Other professional people, who have become involved in litigation and conduct their own cases, may recover something in respect of their own professional skill insofar as they qualify as witnesses and are called as such.  …’

   42. In our view, therefore, that unless there is some reason to give the reference to ‘costs’ in s117 a distinctive meaning, the power to make orders as to costs under that section includes the power to order reimbursement for some disbursements of litigants in person. It is therefore not necessary to consider whether some other source of such power exists under the Family Law Act 1975.

   ……

   50.    To what disbursements or out of pocket expenses, then, does s117 apply?  Clearly ‘costs’ includes such matters as court fees and the reasonable expenses of witnesses.  Litigants in person are entitled to claim such expenses, just as represented litigants can claim them if their solicitors actually pay them.  Mr Fitzgerald submitted that the power to award costs should be given an ample interpretation appropriate to legislation that is remedial in nature.  He submitted that the object of an order for costs is to provide an indemnity in respect of liability for out of pocket expenses reasonably incurred in connection with the legislation.  Having regard to the conclusion that we reach it is not necessary to comment further on this topic.  For the purpose of this case we will assume without deciding that the expenses for which the mother claims fall [sic] the class of expenses which can be claimed under s 117.”

7. In H & H [2006] FamCA 257, the unrepresented wife applied for costs for the travel and parking expenses associated with the hearing and costs associated with preparing and conducting the appeal. Warnick J, citing B and P, held that the wife could not recover as costs, reimbursement for time spent preparing or arguing her appeal.   He further found that the wife could not recover her costs of parking and travel to and from the court as these are not costs which could be recovered if she were represented.

8. In summary, therefore, an unrepresented litigant cannot recover such costs that they would not have been able to recover had they been represented.  As such, an unrepresented litigant may only recover witness fees and out of pocket expenses.  A witness fee includes:-

   -A fee for the time spent in court by the unrepresented litigant actually giving or being available to give evidence

   -A fee for preparatory investigation, analysis and collection of evidence undertaken on the basis of loss of earnings for the time spent on witness activities

   -A fee for travelling expenses to come to court to give evidence as a witness.

   Out of pocket expenses must be determined on a specific basis and be paid directly by the unrepresented party.  They include court fees and the costs of employing agents (including solicitors).  It does not include the costs associated with travelling to the Court.

9. The father’s application for costs must therefore fail.

I certify that the preceding [nine] (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: