FEDERAL COURT OF AUSTRALIA
Mbuzi v Favell (No 3) [2012] FCA 1078
Citation: Mbuzi v Favell (No 3) [2012] FCA 1078 Appeal from: Favell v Mbuzi [2011] FMCA 710 Parties: JOSIYAS MBUZI v PAUL JOSEPH FAVELL File number: QUD 315 of 2011 Judge: COLLIER J Date of judgment: 3 October 2012 Catchwords: PRACTICE AND PROCEDURE – costs – appeal allowed – costs follow the event – appellant litigant in person – whether appellant can claim costs for legal advice where no evidence of client agreement with legal practitioner – whether appellant can claim out of pocket expenses – appropriate order Legislation: Federal Court of Australia Act 1976 (Cth) s 43
Legal Profession Act 2007 (Qld)
Federal Court Rules 2011Cases cited: Australian Super Pty Ltd v Woodward (2009) 262 ALR 402 cited
Cachia v Hanes (1994) 179 CLR 403 cited
George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 cited
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 cited
Saldanha v McAdam [2007] WASC 297 (S) cited
Schokker v Commissioner of Taxation [1999] FCA 1311 cited
Visscher v Teekay Shipping (Australia) Pty Ltd (No 3) [2012] FCA 212 cited
Von Reisner v Commonwealth of Australia (No 2) (2010) 262 ALR 430 citedDate of hearing: 28 March 2012 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr PW Hackett
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 315 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: JOSIYAS MBUZI
AppellantAND: PAUL JOSEPH FAVELL
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
3 OCTOBER 2012
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.By 4.00 pm on 17 October 2012 the appellant present a bill of costs and disbursements to the Registrar in taxable form in accordance with the Federal Court Rules 2011.
2.The Registrar tax the bill of costs and disbursements presented pursuant to Order 1 in accordance with these reasons.
3.After taxation, costs and disbursements of the appellant as are allowed by the Registrar are payable by the respondent forthwith.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 315 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: JOSIYAS MBUZI
AppellantAND: PAUL JOSEPH FAVELL
Respondent
JUDGE:
COLLIER J
DATE:
3 OCTOBER 2012
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Background
On 28 March 2012 I allowed an appeal by Mr Mbuzi against the decision of a Federal Magistrate.
In the judgment I noted that Mr Mbuzi was a self-represented litigant, and to that extent was not entitled to any costs in respect of his appeal, given that an order for costs is confined to money paid or liabilities incurred for professional legal services (Cachia v Hanes (1994) 179 CLR 403, Australian Super Pty Ltd v Woodward (2009) 262 ALR 402
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- Case
- [2012] FCA 1078
- Decision Date
CaseChat Overview and Summary
The court exercised its broad discretion in relation to cost orders pursuant to section 43 of the Act and noted that, as a general proposition, costs follow the event in the absence of special circumstances warranting a different order. The court found that Mbuzi was successful in his appeal and, therefore, ought to be entitled to costs and outlays properly incurred. The court further noted that, in comparable circumstances, the costs of informal legal advice could be claimed if an invoice from the lawyer was provided. The court ordered that Mbuzi present a bill of costs and disbursements to the Registrar in taxable form in accordance with the Federal Court Rules 2011, and the Registrar would tax the bill of costs and disbursements presented in accordance with the reasons provided. After taxation, the costs and disbursements allowed by the Registrar were payable by the respondent forthwith.
Orders
Orders of the court
1. By 4.00 pm on 17 October 2012 the appellant present a bill of costs and disbursements to the Registrar in taxable form in accordance with the Federal Court Rules 2011.
2. The Registrar tax the bill of costs and disbursements presented pursuant to Order 1 in accordance with these reasons.
3. After taxation, costs and disbursements of the appellant as are allowed by the Registrar are payable by the respondent forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
On 12 July 2012 the parties returned before me for further directions. At that hearing Mr Mbuzi submitted, inter alia, as follows:… I found that to give notice to this court that indeed although I do not have legal representation, when the court mutters because I’ve not studied law, I’m not legally qualified and my area is different from law, I go to Atkins [sic] Chambers, which is headed by a former attorney-general and minister for justice Honourable Foley and I give work – those who work in legal circles a call – direct briefing. And the agreement is as I put it there that upon success I will pay a certain amount to pay for consultation, and that is what I have done.(Transcript 12 July 2012 p 6 l 43 – p 7 l 3)Consideration Articulating claims and submissions in Court is frequently difficult for litigants in person. While proper discipline in relation to presentation of arguments needs to be maintained so as not to disadvantage the party who has legal representation, some latitude can, in appropriate cases, be extended to unrepresented litigants in relation to the manner in which they present their cases. In this case Mr Mbuzi has presented evidence and submissions, mixed in documents filed and an affidavit. I am prepared to take this material into consideration. While the Court has a broad discretion in relation to cost orders pursuant to s 43 of the Act, as a general proposition costs follow the event in the absence of special circumstances warranting a different order: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136. In my view it follows that, as Mr Mbuzi was successful in his appeal, he ought to be entitled to costs and outlays properly incurred. At the directions hearing on 12 July 2012 Mr Hackett for Mr Favell submitted that, in respect of legal costs allegedly incurred by Mr Mbuzi, there was no evidence of a client agreement between a legal practitioner and Mr Mbuzi as is required by the Legal Profession Act 2007 (Qld) to entitle him to recover the fees of a legal practitioner in respect of attendances. So far as I can determine, this is correct. However it may be that Mr Mbuzi is able to produce an invoice in respect of particular legal advice or assistance, if he has obtained legal advice or assistance to assist him in prosecuting his appeal. In the event that Mr Mbuzi has properly incurred legal costs in respect of these proceedings, in my view he could properly claim them. In this respect I note comments of Templeman J in comparable circumstances in Saldanha v McAdam [2007] WASC 297 (S) at [11]-[12]. As his Honour there observed:11Ms Saldanha claimed the sum of $60 being the cost of lunch with ‘a lawyer friend’ who provided her with informal advice about her case.12The State Solicitor’s view was that this was not a proper disbursement, but that if the lawyer rendered an account for the advice, Ms Saldanha would be entitled to claim the relevant amount. I agree. I would not accept the claim for $60 unless Ms Saldanha provides an invoice from the lawyer.