Re Bertini; Ex parte Bertini [No 2]

[2010] WASC 86

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE BERTINI; EX PARTE BERTINI [No 2] [2010] WASC 86

CORAM:   MAZZA J

HEARD:   21 APRIL 2010

DELIVERED          :   30 APRIL 2010

FILE NO/S:   CIV 1764 of 2009

MATTER                :An application under the Magistrates Court Act 2004 s 36 for a review order against their Honours Magistrate Bromfield and Magistrate Boothman, both of the Magistrates Court of Western Australia at Perth in CA 2881 of 2006

EX PARTE

ALESSANDRO BERTINI
Applicant

AND

MELVYN LEVITAN
Respondent

Catchwords:

Procedure - Magistrates Court - Review order - Costs - Costs of legal practitioner litigant in person - Section 29 Magistrates Court (Civil Proceedings) Act 2004 - Dobree v Hoffman - No reviewable error

Legislation:

Legal Practice Act 2003 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 25
Magistrates Court (Civil Proceedings) Rules 2005 (WA), pt 5
Magistrates Court (General) Rules 2005 (WA), r 24
Magistrates Court Act 2004 (WA), s 3, s 10, s 28, s 35, s 36
Rules of the Supreme Court 1971 (WA), O56, O 56A
Supreme Court Act 1935 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     In person

Respondent:     In person

Solicitors:

Applicant:     In person

Respondent:     In person

Case(s) referred to in judgment(s):

Cachia v Hanes (1994) 179 CLR 403

Dobree v Hoffman (1996) 18 WAR 36

Michael v Monitronix Ltd (Unreported, WASC, Library No 920044, 20 February 1992)

Rayney v AW [2009] WASCA 203

Re Bertini; Ex parte Bertini [2010] WASC 34

MAZZA J: 

The review order

1. By amended notice of motion dated 1 September 2009 Mr Bertini, whom I will refer to as the applicant, sought a review order pursuant to s 36 of the Magistrates Court Act 2004 (WA) on various grounds.

2. On 15 January 2010 Jenkins J made an ex parte review order in respect of only one of the issues raised in the notice of motion:  Re Bertini; Ex parte Bertini [2010] WASC 34. The order made by her Honour was in the following terms:

   A review order is made in respect of the orders of 10 December 2007, 7 March 2008 and 13 June 2008 ordering the applicant to pay the claimants [Melvyn Levitan's] costs in Magistrate Court proceedings CA 2881 of 2006. 

3. The basis upon which her Honour's order was made is set out in [12] ‑ [23] of her reasons.  Her Honour noted that the respondent Mr Levitan, who at all times was a solicitor litigant, had filed bills of costs claiming professional costs.  The issue for review identified by her Honour was whether the respondent was entitled to such costs which were arguably contrary to the Full Court's decision in Dobree v Hoffman (1996) 18 WAR 36.

4. Mr Levitan was served with the papers and appeared in person to submit that the orders made in the Magistrates Court should not be interfered with.

5. Both the applicant and the respondent are self represented.  The applicant is not a legal practitioner. 

Background

1. The respondent commenced proceedings in the Magistrates Court in Perth in case number CA 2881 of 2006 to recover allegedly unpaid legal fees in the sum of $8,541 plus interest.  The applicant denies that the respondent is entitled to be paid anything. 

2. Although the matter is four years old, the case has not come to trial.  The proceedings have become bogged down in a long series of mostly pointless interlocutory applications, nearly all of which have been initiated by the applicant.  In some of those proceedings, relevantly to this case, on 10 December 2007, 7 March 2008 and 13 June 2008 costs orders were made by magistrates against the applicant in favour of the respondent.  The applicant submits that these orders should be set aside. 

The documentary material before me

1. The applicant has filed two affidavits in these proceedings.  The first sworn on 22 April 2009 is unnecessarily voluminous.  It is 440 pages long including annexures.  The second affidavit is much briefer and was sworn on 22 May 2009. 

2. After the hearing before Jenkins J on 11 September 2009 the applicant delivered to the court more documents.  Of these, the only relevant document was a transcript of the proceedings on 13 June 2008.  I have not been given a transcript of the proceedings on 10 December 2007 and 7 March 2008. 

3. In addition to this material I have received and read written outlines of submission from the parties. 

The proceedings in the Magistrates Court

1. The course of the proceedings the subject of this review appears from the materials is as follows. 

10 December 2007

1. On 13 August 2007 the applicant filed an application seeking 10 orders (affidavit 22 April 2009, page 203).  That application was dismissed on 10 December 2007 (affidavit 22 April 2009, page 201).  The relevant costs order is in these terms:

   Defendant [applicant] to pay claimant's [respondent's] costs of application in any event and payable forthwith.

7 March 2008

1. The applicant filed an application dated 20 December 2007 which sought orders for leave to file a counterclaim and to cite the respondent for contempt (affidavit 22 April 2009, page 64).  Then, on 28 December 2007, the applicant sought summary judgment against the respondent (affidavit 22 April 2009, page 360).  Both of these applications were dismissed on 7 March 2008.  The extracted order (affidavit 22 April 2009, page 72) provides in relation to the application filed on 20 December 2007 that:

   Defendant [applicant] to pay claimant's [respondent's] costs of the application to include reserve costs of 11 January 2008 … and 8 February 2008 to be payable in any event forthwith. 

   As to the application filed 28 December 2007 the magistrate's order was:

   Defendant [applicant] to pay claimant's [respondent's] costs of application in any event and payable forthwith (to only include appearance on 7 March 2008). 

13 June 2008

1. On 29 February 2008 the applicant filed an application for his Honour Mr Boothman SM to recuse himself from the proceedings (affidavit 22 April 2009, page 384).  This application was dismissed on 13 June 2008.  The costs order (affidavit 22 April 2009, page 395) made that day by a magistrate was:

   Defendant [applicant] to pay claimant's [respondent's] costs of the application in any event and payable forthwith.

Bills of costs

1. The respondent has filed bills for assessment with respect to the orders under review.  However, only one of those bills, which relates to the order made on 7 December 2007, has been assessed by a registrar of the Magistrates Court.  The assessment of the other bills has been adjourned. 

2. The bill of costs which has been assessed is dated 18 January 2008 and was assessed by a registrar on 12 June 2008 (affidavit 22 April 2009, pages 223 ‑ 224).  That bill plainly claims costs charged for the respondent's professional time.  The other bills of costs also include claims for the respondent's professional time. 

3. The applicant sought to appeal against the registrar's assessment of this bill of costs.  The appeal was dismissed by his Honour Mr Bromfield SM.  I have been provided with a transcript of his Honour's decision (affidavit 22 April 2009, pages 256 ‑ 259).  His Honour struck out the appeal primarily because the applicant had not complied with the provisions relating to appeals in the Magistrates Court (General) Rules 2005 (WA). However in the course of his reasons his Honour also considered and dealt with the merits of the appeal. He concluded that there was no merit in the grounds. No review has been sought of this decision.

This court's power to control proceedings in the Magistrates Court

1. Section 35 of the Magistrates Court Act states:

   A writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a Court officer.

   A 'Court Officer' is defined in s 3 of the Magistrates Court Act to include a magistrate.

2. Section 36 of the Magistrates Court Act sets out this court's power to control proceedings in the Magistrates Court. The applicant relies on s 36(1)(c) of the Magistrates Court Act which provides:

   (1)If a person is or would be aggrieved by one or more of the following -

   …

   (c)an act, order or direction done or made by a Court officer -

   (i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or

   (ii)on any ground that might have justified an order of certiorari,

   the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.

3. Section 36(4) of the Magistrates Court Act says:

   (4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -

   (a)order that the act, order or direction be or not be done or made or set aside, as the case requires;

   (b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;

   (c)make any necessary consequential orders.

4. As McLure JA, as she then was, made clear in Rayney v AW [2009] WASCA 203 [24] ‑ [27] this court's power under s 36 of the Magistrates Court Act is a judicial review power, as distinct from an appeal or review on the merits.  In this case what must be established is that the orders were made without jurisdiction or power or are an abuse of process or on some ground that might have justified an order for certiorari. 

Statutory provisions with respect to costs in the Magistrates Court

1. The jurisdiction of a court to award costs derives from statute and not the common law. 

2. Section 10 of the Magistrates Court Act provides that the civil jurisdiction of the Magistrates Court is set out in the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MCCP Act)

3. The powers of the Magistrates Court to award costs within its civil jurisdiction are set out in s 25 of the MCCP Act.

4. The power to make a costs order is stated in s 25(1). It says:

   The Court may order a party to a case to pay the whole or a part of another party's costs in the case.

5. Section 25(2) establishes that a successful party is generally entitled to be paid costs by the unsuccessful party. Section 25(4) allows the court to make interlocutory orders for costs.

6. Section 25(7) provides that the amount of costs is to be determined by the court in the absence of any agreement by the parties. While a magistrate at all times retains this power, it has been delegated to a registrar: s 28 of the Magistrates Court Act; r 24 of the Magistrates Court (General) Rules; and pt 5 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA).

7. Section 25(8) provides that a lawyer's costs are to be determined having regard to 'the applicable costs determination'. For the purposes of the decisions under review, the relevant costs determination or determinations were made under the now repealed Legal Practice Act 2003 (WA).

8. Section 25(9) significantly, in this case, applies to self represented parties. It is in the following terms:

   If the Court orders the costs of a self represented party to be paid by another party, the Court may order that the whole or a part of the expenses or losses incurred by the self represented party in or in connection with conducting the case be included in the costs.

9. In my view, having regard to the words of this subsection, it is plain that s 25(1) and it work together. Section 25(9) requires a magistrate to first consider whether a self represented party is entitled to costs pursuant to s 25(1). If the court decides that the party is entitled to a costs order then the court may exercise an additional but separate discretion to order the whole or a part of any expenses or losses incurred by the party be included in the costs provided they were incurred in or in connection with the conduct of the case.

10. The words 'expenses' and 'losses' are not defined in the MCCP Act. It is unnecessary for me and I am not inclined in this case, given that neither party made submissions on the point, to precisely define the scope of these words. However, I am satisfied that because of the use of the word 'losses' in addition to the word 'expenses', the court, in its discretion may award a self represented party more than out of pocket expenses. It may well be that the word 'losses' includes costs for lost time.

11. Where a magistrate decides that a self represented party is entitled to costs under s 25(9) this should be explicitly stated in the order so that both the parties and the registrar are clear as to what items comprise the award of costs. If the order makes no explicit reference to s 25(9) or in the absence of material which shows that the magistrate who made the order intended the order to be made under s 25(9), any relevant bill of costs should be assessed on the basis that the costs order was based only on s 25(1).

12. In his oral submissions the respondent accepted these propositions and conceded that none of the costs orders were made pursuant to s 25(9). Rather, they were costs orders made under s 25(1).

Dobree v Hoffman

1. What costs, then, can the respondent recover under s 25(1)? The answer to this question raises the decision in Dobree v Hoffman. 

2. In Dobree v Hoffman Parker J, with whom Rowland & Steytler JJ agreed, held that a solicitor who is a litigant in person, such as the respondent, cannot recover any profit costs on a party and party taxation, his position being the same as any other litigant in person. 

3. A litigant in person is only allowed out of pocket expenses reasonably and properly incurred:  Michael v Monitronix Ltd (Unreported, WASC, Library No 920044, 20 February 1992). Such a litigant cannot recover as costs, compensation for time spent by him or her in preparing and conducting the case unless permitted by statute: Cachia v Hanes (1994) 179 CLR 403, 417.

4. Dobree v Hoffman was decided in the context of the Supreme Court Act 1935 (WA) and the Rules of the Supreme Court 1971 (WA). Nevertheless, it confirms the general rule in this State that a lawyer litigant, like any other self represented party, is only entitled to claim out of pocket expenses and not lost time.

5. Section 25(9) is a statutory exception to this general rule to the extent that it gives the Magistrates Court a discretionary power to award any self represented litigant costs for their expenses and losses incurred in or in connection with the conduct of the case. In my opinion where no order is made under s 25(9) the general rule in Dobree v Hoffman applies so that a self represented litigant is limited only to out of pocket expenses.

Application of legal principles to this case

1. There is no doubt that the costs orders under review were made within both the jurisdiction and the powers vested in magistrates under the Magistrates Court Act and the MCCP Act. They are not an abuse of power. No ground has been established which would justify an order for certiorari. Indeed, the applicant appeared to concede these things in his written submissions: par 5 submission 22 February 2010.

2. The applicant's case is really focussed, not on the orders made by the magistrates, but on the respondent's conduct in lodging bills of costs which include claims for his professional costs.  The applicant's real case is that the respondent acted improperly in lodging these bills. 

3. The respondent's position is that he genuinely believed that he was entitled to claim his professional costs, but now accepts that he was not so entitled. 

4. The respondent's conduct is not something which is susceptible to review under s 36 of the Magistrates Court Act.  This is something the applicant can, and is, pursuing elsewhere.  I make no comment about the merits of this.  I can see no basis to set the three orders under review aside and I decline to do so. 

Some other issues

1. Two other brief issues were raised in the written submissions. 

2. The applicant submitted that the respondent's claim was in truth a minor claim and not a general procedure claim. If this is so, the respondent is only entitled to claim court fees and service fees having regard to s 31(1) and s 31(2) of the MCCP Act.

3. At the time the respondent commenced proceedings up until 1 January 2009, the minor case jurisdictional limit was $7,500. On 1 January 2009 this jurisdictional limit was raised to $10,000: s 3(1) of the MCCP Act. At the time the respondent commenced the proceedings his claim was not within the minor case jurisdiction of the Magistrates Court. However, the applicant's submission is that over $2,000 of the respondent's claim was statue barred when the action was commenced. He submits that taking into account this statute barred component the amount of the respondent's claim as at April 2006 was below $7,500. The respondent does not accept that any part of the claim was statute barred.

4. Whether or not any part of the respondent's claim is statue barred will be for the Magistrates Court to decide at trial.  In the meantime, it appears that the respondent's claim was not, on the days that any of the costs orders were made, within the minor case jurisdictional limit.  This is not a matter susceptible to review at this time.

5. The respondent submitted that if the applicant established that the orders were liable to be set aside I should exercise my discretion not to grant relief because the application was made out of time. 

6. I have not been satisfied that the orders should be set aside and so I do not need to decide this point. However, the submission was based under a misapprehension that proceedings for a review order are subject to a time limit of six months. The respondent cited O 56 of the Rules of the Supreme Court in support of this submission. In fact, the correct rule is O 56A. Nowhere in that rule is a time limit mentioned. This does not mean delay is irrelevant. Relief pursuant to s 36(4) of the Magistrates Court Act is discretionary.  An applicant may establish grounds to set an order aside but a court may nevertheless decline to set the order aside:  Rayney v AW [31]. One reason a court may decline relief is delay.

The future conduct of the proceedings

1. I confirm, for the sake of the future conduct of this case, that the respondent accepts, and I have decided, that none of the costs orders under review were made under s 25(9) of the MCCP Act and that with respect to these orders he is only entitled to his out of pocket expenses. He, quite properly, has undertaken to enforce the assessment made by a registrar on 12 June 2008 only to the extent of his out of pocket expenses. Where the respondent has filed other bills of costs pursuant to costs orders not made under s 25(9), those bills of costs should be redrawn to include only claims for out of pocket expenses. The respondent has said he will do this. It will then be for the registrar to assess them in the usual way. If the respondent, for some reason, does not file redrawn bills and seeks to have the current bills taxed, no doubt the applicant will provide the registrar with a copy of this judgment.

2. As I remarked at the beginning of these reasons, four years has elapsed since the proceedings commenced and still the matter appears no closer to trial.  I have not been made aware of any factor which would prevent the matter being listed for trial and determined.  Every effort must now be made to ensure that the trial proceeds.  In my view these proceedings should not have delayed the trial.  They were in relation to costs orders which had already been made and whatever the outcome the orders had no bearing whatever on any trial.  I urge the parties to get on with finally resolving this case.

Orders

1. The application to review is dismissed.  Further, subject to anything the parties may wish to say, I propose making no order as to costs.  This is because, although the learned magistrate's decisions were not reviewable, the applicant's contention that the respondent was not able to recover costs for his professional time has been accepted.  In my wide discretion to order costs, I do not think it appropriate to order costs in favour of one or other party.