Macks, Peter Ivan as Trustee of the Bankrupt Estate of Donka Gorcilov v Ekena Pty Ltd

[1998] FCA 725

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY  SG 55 of 1997

BETWEEN:             FRANCIS NNAMDI ELEKWACHI
  Applicant

AND:  HUMAN RIGHTS AND EQUAL OPPORTUNITY
  COMMISSION
  Respondent

JUDGE:  MANSFIELD J
DATE:  20 NOVEMBER 1997
PLACE:  ADELAIDE

REASONS FOR DECISION

HIS HONOUR:        I gave judgment in this matter on 3 November 1997.  At the completion of giving judgment I asked whether there were any other orders which were then sought, but none were then sought.  Subsequently the applicant informed the Court that he wished to seek an order for costs against the respondent.

I have considered the applicant’s submissions, both made orally today and in the material which he submitted with his letter to the Registrar of 10 November 1997 which includes a bill of costs.

However sympathetic one may be to the situation in which the applicant found himself during mid 1996 and thereafter, in my view I am bound by the decision of the High Court in Cachia v Hanes (1993-1994) 179 CLR 403 in relation to his application. That decision was with respect to provisions of the Supreme Court Act 1970 (NSW) and the Supreme Court Rules.  In my view, that decision applies with equal force to the Federal Court of Australia Act 1976 and to the Federal Court Rules.  I am unable to discern a point of distinction of significance between the relevant provisions in the New South Wales jurisdiction and as they apply to this Court in relation to that issue of costs.  I note also that in Morton v Official Receiver for Bankruptcy Division of the State of Victoria (1996) 68 FCR 360, Olney J reached a similar conclusion in respect of s 32 of the Bankruptcy Act 1966 and the Bankruptcy Rules.  It might be suggested that Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 39 FCR 288, is a decision to the contrary. In Morton (above), Olney J noted that the decision of the High Court in Cachia (above) was made subsequent to the decision in Boswell (above) and had the effect of significantly qualifying the meaning of “out-of-pocket expenses” as interpreted in Boswell.  For present purposes, that refinement is not important as it is not put that the applicant has in fact lost earnings related to his time in preparation or presentation of his case.

Accordingly, I am bound to apply the decision in Cachia (above).  The Court (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) there said (at 409):

“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”.”

At 410 the majority said:

“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.”

The applicant, having appeared in person in this matter, is not entitled to costs generally.  That is clear from that authority.  He may be entitled to recover direct out-of-pocket expenses subject, of course, to my discretion as to an appropriate order for costs.  He is not and was not at material times employed.  There is no material before me suggesting that he has incurred directly any loss of income during the time he conducted these proceedings.  For reasons which I have given, despite the decision in Boswell (above), I do not think he would be entitled to such loss even if it were made out.  He has acknowledged that no court fees were incurred by him.

The remaining item of out-of-pocket expenses which the bill of costs identifies is photocopying.  That is a direct out-of-pocket expense and, in my view, can be the subject of an order for costs if it is otherwise appropriate.  Although the respondent appeared simply for the purpose of submitting to any order for the Court and, as I have elsewhere said, appropriately so, it appears on this application for costs and does not contest that it would be a proper exercise of my discretion to order that the applicant recover his reasonable out-of-pocket expenses in the nature of photocopying.  In those circumstances I do not need to further consider whether, in the exercise of my discretion, I should not make such an order.  I am not myself aware of any circumstances which would militate against such an order.

I accordingly order that the applicant recover from the respondent his out-of-pocket expenses with respect to photocopying only in respect of his application, but limited to such expenses as were reasonably incurred by him.  If the parties cannot agree as to that amount, it will be for a taxing officer to determine.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Date:

Applicant appears in person

Counsel for the Respondent:  Mr G Gretsas
Solicitors for the Respondent  Australian Government Solicitor

Date of Hearing:  20 November 1997

Date of Decision:  20 November 1997