FEDERAL COURT OF AUSTRALIA

Croker v Commissioner of Taxation [2002] FCA 1432

PRACTICE AND PROCEDURE – appeal from Federal Magistrates Court – Magistrate refused application for extension of time to appeal costs order made by Registrar – self-represented litigant seeking costs for work done in relation to proceedings – litigant undertaking legal studies and has worked as a paralegal – consideration of Cachia v Haines

Low v Commonwealth[2001] FCA 702, cited

Cachia v Haines (1994) 179 CLR 403, considered

CLAYTON ROBERT CROKER v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

N710 of 2002

MADGWICK J

12 NOVEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(revised from transcript)

1                     This is an appeal from the whole of the judgment of Driver FM given on 25 June 2002.  The learned Magistrate’s judgment dealt with an application by the appellant for an extension of time within which the Federal Magistrates Court might review a decision of Registrar Hedge, exercising the Bankruptcy jurisdiction of that Court.  Registrar Hedge’s decision given on 14 May 2002 set aside a bankruptcy notice against the appellant which he had challenged and, secondly, the Registrar made an order for costs in the appellant’s favour in the modest sum of $100.

2                     The learned Magistrate, relying on a decision of Marshall J in Low v Commonwealth [2001] FCA 702, considered that there were three issues.  The first was whether there was an explanation, and if so what was the explanation, for the delay in filing the application for relief; secondly, what the interests of justice required and thirdly, “whether the application disclose[d] an arguable case”.

3                     The learned Magistrate considered the matter of time sensibly.  The appellant was a week late and understood that it was possible he was given erroneous advice by the Registry.  The learned Magistrate said:

“The applicant has advanced a plausible and acceptable explanation for the delay in filing his review application”

and pointed out that, as to the interests of justice, something of a balance would need to be struck.

4                     Dealing with the third issue, namely, whether the applicant had an arguable case in connection with his application for a review of the costs order done, the learned Magistrate said:

“The following circumstances are relevant.  First, the applicant was self represented in his application to set aside the bankruptcy notice.”  The registrar properly relied upon my decision in Shephard v Blueberry Farms of Australia (Corindi) Limited [2001] FMCA 2, in particular at paragraph 66, where I held that the self represented litigant was not entitled to an ordinary order for costs because a self-represented litigant does not incur legal costs as an expense.

The authority for that proposition is the High Court decision in Cachia v Haines (1994) 179 CLR 403. 

…

The principle underlining the High Court’s decision is that:

‘A self-represented litigant is not entitled to costs to compensate for personal exertion in representing [himself or herself].’

and it seems to me that that is a proper principle ... The amount of costs fixed by the registrar was $100.  Mr Croker has not incurred any out of pocket expenses for court filing fees.  He is not employed and it seems that he would not be able to advance an arguable case for any significant amount by way of witness expenses.  He has incurred photocopying expenses and that was taken into account by the registrar and fixed in the amount of $100.  My conclusion is that the amount of $100 is properly fixed by the registrar in the exercise of her discretion and nothing has been advanced to me which would satisfy me that the appellant has an arguable case to disturb that assessment.

I conclude therefore that the applicant has not advanced an arguable case in support of his application.  I will therefore refuse the application for an extension of time and dismiss the application for a review of the registrar’s decision.”

5                     The learned Magistrate ordered the appellant to pay the respondent’s costs which he fixed in the sum of $1000. 

6                     The appellant argues that Cachia v Haines is distinguishable.  He says that he is a “legally qualified person”.  What he means by this is that he apparently is undertaking some legal studies and has worked as a “paralegal” employee.  He submits that the Federal Court’s scales of costs can be resorted to for guidance by an assessing officer of the Federal Magistrates Court as to the amount which should be allowed for the time and service of a person working as a paralegal.

7                     In Cachia v Haines it is possible to read the majority judgment as depending upon the particular Supreme Court Rules under consideration.  However, when one has regard to the argument for the appellant in that case which was rejected [see page 404], in my opinion it is clear that, although attention was paid to the actual rules by the majority and there was some considerable discussion of them, the clearly better view is that the majority held the notion of “costs”, unless specifically explained so as to include a measure of compensation for the loss of time by a litigant in person in preparation of his or her case and/or in attendance at court (otherwise than as a witness), does not include any such measure of compensation.  The Court said (at 410-11):

“It has not been doubted since 1278 when the Statute of Gloucester 1278 (UK) 6 Edw 1.c.1. introduced the notion of costs to the common law that costs are awarded ... for professional legal costs actually incurred in the conduct of litigation.  They were never intended to be comprehensive compensation for any loss suffered by a litigant.  As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, ‘but not to the costs and expences of his travell and losse of time.’ ”

8                     The Court was critical of the established exception to this general principle whereby a solicitor who acts for himself might charge his unsuccessful opponent for the work done by himself or his clerk - that is, presumably, what Mr Croker refers to as a “paralegal”.  There is no warrant in authority for making an exception for a litigant in person who is a paralegal, or is qualified to be, or has in the past worked as a solicitor’s clerk.  Nor, consonant with the general principle enunciated by the majority in Cachia v Haines, and the Court’s criticism of the exception for solicitors, is there any reason in principle to make an extension of that exception for persons in the position of Mr Croker.

9                     It follows that, although the matter was expressed in terms of arguability of the point, the proper conclusion is that the appellant had no reasonable prospects of success in upsetting the costs order made by the Registrar, and that Federal Magistrate Driver was correct in refusing to extend time.  Alternatively, the matter may be viewed on the basis that the learned Magistrate was exercising a discretionary judgment and the appellant has not shown that the Magistrate has made any error of the narrow kinds traditionally recognised as necessary to upset such a judgment. 

10                  In these circumstances, the appeal in this Court must be dismissed.  The appellant is to pay the respondent’s costs of the appeal.

Associate:

Dated:              20 November 2002