Scott v Northern Territory

[2005] NTCA 4

[Back] Scott & Anor v NTA & Ors [2005] NTCA 4

PARTIES: SCOTT, Letty Marie
SCOTT, Nathan William

v

NORTHERN TERRITORY OF AUSTRALIA
MEDLEY, Barry
ROBERTSON, Harold
LAWSON, Michael

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP 3 of 2004 (20304424)

PARTIES SCOTT, Letty Marie
SCOTT, Nathan William

AND

ATTORNEY-GENERAL OF THE NORTHERN TERRITORY OF AUSTRALIA
LEE, Dr Kevin

TITLE OF COURT: FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 14 of 2004 (20402930)

DELIVERED: 4 July 2005

HEARING DATES: 22 February 2005

JUDGMENT OF: MARTIN (BR) CJ, MILDREN J AND PRIESTLEY AJ

CATCHWORDS:

CIVIL – COSTS
Costs on successful appeal – applicant assisted McKenzie friend – award out of pocket expenses only.

REPRESENTATION:

Counsel:
Appellants: Self
Respondents: M Grant
Attorney-General for
Queensland (Intervening) B Thomas

Solicitors:
Appellants: Self
Respondents: Solicitor for the Northern Territory
Intervener: Attorney-General for Queensland

Judgment category classification: C
Judgment ID Number: Mar0512
Number of pages: 3

Scott & Anor v NTA & Ors [2005] NTCA 4

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No. AP 3 of 2004 (20304424)

BETWEEN:

LETTY MARIE SCOTT
NATHAN WILLIAM SCOTT
Appellants

AND:

NORTHERN TERRITORY OF AUSTRALIA
BARRY MEDLEY
HAROLD ROBERTSON
MICHAEL LAWSON
Respondents

IN THE FULL COURT OF THE
SUPREME COURT OF THE
NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No 14 of 2004 (20402930)

BETWEEN

LETTY MARIE SCOTT
NATHAN WILLIAM SCOTT
Plaintiffs

AND

ATTORNEY-GENERAL OF THE NORTHERN TERRITORY OF AUSTRALIA
DR KEVIN LEE
Defendants

CORAM: MARTIN (BR) CJ, MILDREN J & PRIESTLEY AJ

REASONS FOR JUDGMENT

(Delivered 4 July 2005)

THE COURT:
[1] On 22 February 2005 this Court upheld the applicants’ appeal against a decision of a Judge holding that the Supreme Court of the Northern Territory does not have jurisdiction to make an order for the exhumation of a body located outside the geographical boundaries of the Northern Territory. The question of costs was reserved.
[2] The respondents do not contest that the applicants are entitled to the following costs incurred in pursuing the proceedings in this Court:
• Video conferencing expenses for the appeal $1,700
• Filing fee $500
• Service expenses $99
[3] At issue is a claim by the applicants identified in their written submissions in the following terms:
“Fees for the professional legal services provided by Mr Taylor as their legal friend, in satisfaction of the responsibility placed upon him by way of leave of the Court to represent the litigants in the Court, to be quantified in accordance with the Supreme Court Rules for costs of a Solicitor’s Clerk.”
[4] At the request of the applicants, this Court gave leave to Mr Daniel Taylor to appear as a McKenzie friend for the purposes of presenting the applicants’ submissions. Mr Taylor is not an admitted practitioner. Nor is he a clerk employed by a solicitor. The applicants were granted the indulgence of having Mr Taylor present their submissions for them. The Court did not, as the applicants’ written submissions suggest, place a responsibility on Mr Taylor.
[5] Provision is made for costs in O 63 of the Supreme Court Rules. It is well settled in this context that while litigants in person are entitled to costs by way of out of pocket expenses, they are not entitled to costs in the nature of preparation and court presentation such as are normally awarded for professional legal services.
[6] Mr Taylor is a student. He is not entitled to recover from the applicants any professional legal fees.
[7] The application for fees for services provided by Mr Taylor is refused. Pursuant to O 63.07 of the Supreme Court Rules, the order of the Court is that the respondents pay the applicants costs fixed at $2,299.00 being the sum of the out of pocket expenses specified earlier in these reasons.
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