FEDERAL COURT OF AUSTRALIA

Rambaldi v Woodward (No 2) [2013] FCA 104

THE COURT ORDERS THAT:

1.    The applicants pay the disbursements properly outlaid by the respondent in connection with the applicants’ application for leave to appeal.

2.    Save as aforesaid, the respondent’s application for costs be dismissed.

3.    With respect to costs related to the respondent’s application for costs the subject of Orders 2, 3 and 4 made on 8 February 2013, the parties have leave to file written submissions as follows:

(a)    the applicants, by 4:00 pm on 22 February 2013;

(b)    the respondent in response, by 4:00 pm on 26 February 2013;

(c)    the applicants in reply, if necessary, by 4:00 pm on 28 February 2013.

Note:    Entry of orders is dealt with Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 8 February 2013, I refused the application of the applicants, Gess Michael Rambaldi and Andrew Reginald Yeo, trustees of the bankrupt estate of John Edward Atkinson, for leave to appeal from an interlocutory judgment made by the court on 13 December 2012: Rambaldi v Woodward [2013] FCA 89. On that occasion, the respondent to the application, Kim Cherie Woodward, represented herself. Upon the refusal of the applicants’ application, the respondent sought her costs. She did so because, as she informed me from the bar table, she was admitted to practise as a lawyer. When I asked her whether she held a practising certificate, she replied in the affirmative. She contended that there was an exception to the general rule that an unrepresented litigant was not entitled to his or her costs (as distinct from disbursements) where he or she was a legal practitioner. Counsel for the applicants were disposed to think that there was such an exception, but they sought, and were granted, an opportunity to have the respondent’s application for costs dealt with on the papers after the filing of written submissions by both sides. That explains the second, third and fourth orders which I made on 8 February 2013. The parties have now filed submissions as contemplated by those orders, and these reasons deal with the issues raised in those submissions.

2    The question whether an exception, of the kind to which I have referred, exists in Australia was settled in the affirmative by the reasons of the majority (Gibbs ACJ, Jacobs and Aickin JJ) in Guss v Veenhuizen [No 2] (1976) 136 CLR 47. The exception was noted by the majority (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) in Cachia v Hanes (1994) 179 CLR 403, a judgment which confirmed the general rule that a litigant in person was not entitled to his or her costs, other than disbursements. In the parties’ written submissions, I was referred to a number of recent authorities in which these principles have been discussed, but, by reasons of the facts of the present case to which I refer below, it is unnecessary to canvass those authorities.

3    Although not the subject of an affidavit by the respondent, the relevant facts of the case appear, from the terms of the parties’ written submissions, to be uncontroversial. The respondent is admitted as a lawyer under the Legal Profession Act 2004 (NSW). Her name appears on the local roll maintained by the Supreme Court of New South Wales. She holds what is described a “Restricted Government” practising certificate granted by the Law Society of New South Wales. That means that she is entitled to engage in legal practice as a solicitor in the course of her employment by the New South Wales government or the Commonwealth government, or a prescribed corporation. Her name is not entered on the Register of Practitioners kept under s 55C of the Judiciary Act 1903 (Cth).

4    The provisions of the Judiciary Act which would govern the respondent’s entitlement to represent another person in the Federal Court of Australia are subss (1) and (3) of s 55B, as follows:

(1)    Subject to this section, a person who:

(a)    is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State; or

(b)    is for the time being entitled, under a law (including this Act) in force in a Territory, to practise as a barrister or solicitor, or as both, in the Supreme Court of that Territory;

has the like entitlement to practise in any federal court.

….

(3)    A person is not entitled to practise as a barrister or solicitor in a federal court by reason of subsection (1) unless his or her name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity.

Under s 55B(1), the stream cannot rise higher than its source. A person entitled to practise as a solicitor in the Supreme Court of a State has no more than “the like entitlement” to practise in this court. The respondent could not, therefore, represent a private litigant such as herself in this court.

5    Further, the respondent could not practise as a solicitor in this court because her name does not appear in the Register of Practitioners kept in accordance with s 55C of the Judiciary Act. A solicitor whose name was not entered on such a register was nonetheless allowed his professional costs in Guss v Veenhuizen, but the majority made it clear that this was wholly because the absence of the solicitor’s name from the register was due to an error on the part of an officer of the High Court when the solicitor had attempted to enrol himself. Their Honours said (136 CLR at 52):

If the error had not been on the part of an officer of the Court but had been the fault of the party himself, the Court would not attempt to assess his capacity to do the work done by him. He would be regarded as in the same position as an ordinary layman.

In the present case, there is no suggestion that the absence of the respondent’s name from the s 55C register was attended by any such special circumstance as obtained in Guss v Veenhuizen. Indeed, had the respondent been represented in the present case by a practitioner who was not entitled to practise in a federal court, she would not have been awarded the practitioner’s professional costs: Kenna v Conolly (1943) 17 ALJ 32. Save for the circumstance that federal rather than state jurisdiction is involved, the present case seems to be on all fours with Worchild v Petersen [2008] QCA 26.

6    For the above reasons, the respondent’s application for costs must be refused. However, no objection was raised by the applicants to the respondent recovering her disbursements, and I shall so order.

7    I propose to extend to the parties the opportunity to file brief written submissions as to the costs of the argument on costs with which I have dealt in these reasons. In the light of the indication given on 8 February 2013 by the respondent – namely, that she held a practising certificate – those submissions should deal not only with the question of costs as such, but also with the question whether, if costs are to be awarded against the respondent, they should be so awarded on some basis other than the conventional one.

Associate:

Dated:    20 February 2013