FEDERAL COURT OF AUSTRALIA

Mbuzi v Favell (No 3) [2012] FCA 1078

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.

REASONS FOR JUDGMENT

Background

1    On 28 March 2012 I allowed an appeal by Mr Mbuzi against the decision of a Federal Magistrate.

2    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 at [60]-[61]). However after judgment was delivered Mr Mbuzi requested the Court to consider an order in relation to outlays he had incurred in respect of the hearing before the Federal Magistrate and the appeal. In particular, Mr Mbuzi submitted as follows (transcript 28 March 2012 p 3 ll 5-32):

MR MBUZI: Your Honour, I fully appreciate that and I am in total agreement with your Honour. In fact, your Honour, the costs I was talking to relate to the issue of outlays, your Honour, and, your Honour, I have three authorities to that effect. The costs that I was going to ask your Honour relates to fixed costs I’ve incurred by consulting a barrister. I’ve done a greatly reduced the fee of $450 a session and I buy the five sessions in relation to that. I also have incurred costs in relation to my travel. I have also incurred costs in relation to parking fees. I have also incurred costs in relation to documentation, which has been a lot, and that amount I have put it at $20. In fact, I was going to ask your Honour to fix the costs and I’ve calculated them. And by way of authority, your Honour, I have Queensland court of appeal decision. It reads I-v-e-r-s Ivers v McCubbin, M-c-C-u-b-b-i-n & Others (2005) QCA 200. Another authority your Honour I have relates to a supreme court of Queensland matter in which I was the applicant and the matter is Mbuzi v Queensland Commission of Police. And your Honour again in that matter a decision was made for me to recover costs, consistent with the court of appeal decision.

The third authority, your Honour, relates to a Queensland supreme court matter in which I was the applicant and the respondent was Murray, this gentleman is an officer of the Queensland state government. Your Honour, another matter in which I was involved again relating to costs is the Queensland supreme court matter in which I was the applicant and the respondents were Gregory Cooper and Others. Gregory Cooper, your Honour, is a solicitor for the Queensland government. Your Honour, in all those cases the decisions are that if a litigant who is self-represented ought to recover the costs incurred. And, your Honour, the costs that I’m requesting indeed are consistent with what your Honour has said and they are also consistent with the other costs that are in the matters I have referred to. I have a calculation here which perhaps your Honour would give to one of the court officers. I’m not sure whether your Honour is able to look at and - - -

3    Mr Mbuzi also indicated in Court that he had brought to Court material upon which he proposed to rely. I informed the parties that I was prepared to entertain submissions concerning expenditure outlaid by Mr Mbuzi in relation to the appeal, directed that the material brought by Mr Mbuzi be copied to Mr Favell and filed as submissions of Mr Mbuzi, and made timetabling orders in relation to the filing of submissions by Mr Favell.

4    The material filed by Mr Mbuzi includes:

    a document headed “Costs Calculations” in which the following outlays are set out:

    transcripts of proceedings involving Mr Mbuzi before the Supreme Court of Queensland;

    a copy of Ivers v McCubbin [2005] QCA 200; and

    an excerpt from a legal text.

5    On 5 April 2012 Mr Favell filed submissions in respect of costs. Materially, Mr Favell contended:

1.    The court’s power to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) (“the Act”).

2.    Section 43 confers a broad general discretion in respect of the awarding of costs. That discretion is one which must be exercised judicially, not whimsically or idiosyncratically.

3.    Mr Mbuzi has not established any entitlement to costs.

4.    The claim made is not substantiated.

5.    There is not a proper basis for making any order for costs in favour of Mr Mbuzi and no order should be made.

6    Mr Favell relied on Cachia v Hanes, George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 and Australian Super Pty Ltd v Woodward.

7    On 17 April 2012 Mr Mbuzi swore an affidavit in which he responded to Mr Favell’s submissions filed 5 April 2012. In that affidavit Mr Mbuzi deposed, in summary:

    he was claiming only outlays, not legal costs;

    he was relying on the document filed on 28 March 2012; and

    he was claiming the Federal Court filing fees from Mr Favell.

8    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

9    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.

10    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.

11    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:

11    Ms Saldanha claimed the sum of $60 being the cost of lunch with ‘a lawyer friend’ who provided her with informal advice about her case.

12    The 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.

12    In respect of out of pocket expenses claimed by Mr Mbuzi, there is sound authority to the effect that Cachia v Hanes does not prevent a litigant in person from claiming out of pocket expenses actually, necessarily and reasonably incurred: Schokker v Commissioner of Taxation [1999] FCA 1311 at [3], Von Reisner v Commonwealth of Australia (No 2) (2010) 262 ALR 430 at [23], George v Fletcher (Trustee) (No 2) at [17], Visscher v Teekay Shipping (Australia) Pty Ltd (No 3) [2012] FCA 212 at [9]. The power of the Court to award costs conferred by s 43 of the Act does not extend to awarding a litigant in person any amount for the time spent in preparing the case or presenting it to Court, however there is nothing in Cachia v Hanes which precludes a claim for such expenses as filing fees or the costs of copying the appeal books: George v Fletcher (Trustee)(No 2) at [17], Visscher at [9].

13    In my view the appropriate order is to require Mr Mbuzi to present to the Registrar a bill of costs and disbursements in taxable form in accordance with the Federal Court Rules 2011, and to further order that Mr Mbuzi should be entitled to recover such costs and disbursements in respect of these proceedings as the Registrar allows as being properly and reasonably incurred.

Associate:

Dated:    3 October 2012