Federal Court of Australia

MS PD v Registrar of the Federal Court of Australia (No 2) [2021] FCA 1665

ORDERS

THE COURT ORDERS THAT:

1.    The affidavit of the applicant filed on 25 October 2021 may not be accessed by a person other than the applicant or an officer of the Court in un-redacted form, but may be accessed with the name of the applicant redacted if so approved by a Court or a judge.

2.    The application be dismissed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 31 August 2021, for reasons which I delivered ex tempore (see MS PD v Registrar of the Federal Court of Australia [2021] FCA 1197 – the principal judgment), I set aside a decision of a registrar of the Court made or confirmed on 9 August 2021 not to accept for filing an application for leave to appeal against the Court’s order of 22 July 2021 in proceeding VID792/2020 lodged on 4 August 2021. The applicant has now sought an order for costs. These reasons for judgment must be read in conjunction with the principal judgment.

2    On 26 August 2021, a submitting notice was filed by the then named respondent, an officer of the registry. That particular submitting notice is indicative, in any event, of the appropriate response of a registrar in relation to such a review application. It would be a rare case indeed when a registrar did other than abide the order of the Court, save in respect of costs. Further, although the registrar is, obviously enough, because of the filing of the present interlocutory application, aware of the application and that awareness has been the subject of reminder at my direction, there has been no appearance by or on behalf of the registrar to make submission in respect of costs. Once again, in the ordinary course of events that is an entirely appropriate stance.

3    Although the applicant is, to say the least, hardly without formal tertiary qualification in law, nonetheless she in the present proceeding acted on her own behalf. The applicant made it explicit that she did not seek any order in respect of professional costs. Even had she been admitted and acted for herself, the position in Australia is that a self-represented litigant may not obtain any recompense for the value or his or her time spent in litigation: see Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333, at [1], citing with approval Cachia v Hanes (1994) 179 CLR 403, at 410 – 411.

4    What the applicant did seek were out of pocket expenses. There is authority that out of pocket expenses necessarily and reasonably incurred may be allowed to a litigant in person. The position in that regard is neatly summarised by Professor G.E. Dal Pont in his work Law of Costs (4th Edition) at [7.29]:

More generally, out-of-pocket expenses can include court fees, transcript costs, expenses for servicing documents, freedom of information fees, fees for searching registers, costs of appeal book binding, and incidental expenses in relation to photocopying, postage, and telephone and facsimile transmissions.

5    To this list in present times and given that the Court maintains an electronic Court file, might be added reasonable internet connection and data usage fees. Indeed, that type of expense was one of the out of pocket expenses identified by the applicant as claimed. Inferentially, there was necessarily such an expense incurred, although its precise quantification would be difficult. Even so, were it merely a matter of quantification, than based on inference some reasonable if modest amount might be allowed even without precision of proof.

6    In the past I have been disposed to allow reasonable travel expenses. On further reflection, that view is not in accordance with a view reached by the New South Wales Court of Appeal in Murphy v Arnoldus-Lewis [2009] NSWCA 142, at [9].

7    The cases where out of pocket expenses have been allowed to a litigant in person have been those where there was an active contradictor. That is not this case.

8    The applicant helpfully drew my attention to a judgment of the Court given earlier this year by White J in Rana v Registrar Cridland (No 2) [2021] FCA 1212. That was a similar proceeding to the present. As I do, his Honour recognised that the Court’s power to award costs is contained in s 43 of the Federal Court of Australia Act 1976 (Cth) (the Act), the effect of which, materially, is that the awarding of costs is in the discretion of the Court. His Honour also recognised, as I have already, that there are circumstances in which a successful self-represented litigant may be entitled to recover out of pocket expenses. Influential in the exercise of his Honour’s discretion pursuant to s 43 of the Act was that, in the first place, the out of pocket expenses appeared to be de minimis, in other words modest. And secondly, in the circumstances of that case, the applicant, by the very nature of his pleading, seemed to his Honour to have contributed materially to the particular decision of the registrar. What his Honour meant by that was that there was conduct of the applicant in this case which disentitled him to an award of costs in respect of matters such as printing costs.

9    The same cannot be said, as the principal judgement reveals, in relation to the applicant in the present case. She had recourse to the correct form and she inserted on that the correct particulars. Her application ought to have been accepted. It is understandable in these circumstances that she is left with a sense of injustice about what occurred.

10    In other circumstances where, through no fault of a party, costs have been visited on a party either by an exercise of judicial power which comes to be under appeal or, for that matter, by a decision of the Administrate Appeals Tribunal which becomes the subject of an appeal, the Federal Proceedings (Costs) Act 1981 (Cth) (Federal Proceedings Costs Act) makes provision for limited indemnification out of public funds to remedy that kind of injustice. There is a particular cap representing a value judgement of parliament. However, the definition of “Federal Appeal” in s 3 of the Federal Proceedings Costs Act does not extend to a review of the present kind of a decision of a registrar. The present case highlights what might be thought to be occasion for a desirable amendment of that definition. It is no less desirable because the particular injustice was one visited on a litigant in person. It needs to be remembered that an important feature of our system of government is that a person, even if acting for him or herself, is entitled to seek an exercise of the judicial power of the Commonwealth.

11    The particular difficulty, as I see, it is that the registrar in no way adopted the role of contradictor. Costs are compensatory, not punitive. And that extends even to out of pocket expenses allowed to a litigant in person.

12    To allow such an expense, an exercise of discretion is required. In EEU20 v Meat Industry Employees’ Superannuation Fund Pty Ltd (Trustee) (No 2) [2020] FCA 1536 (EEU20) observations made in the Victorian Court of Appeal in Pham v Victims of Crime Assistance Tribunal (No 2) [2016] VSCA 135, at [5], commended themselves to Mortimer J. In that case, the Victorian Court of Appeal stated:

It would be a most unusual case in which a tribunal which has not actively defended its decision would be ordered to pay the costs of a successful appeal against that decision. While the Court has power to make such an order, and the matter is always to be decided in the exercise of the Court’s discretion according to the circumstances of the particular case, the general assumption that costs will follow the event does not apply in such circumstances; to the contrary, a tribunal that has not actively taken part in the proceeding will usually not be ordered to pay the successful party’s costs. It has been said that the circumstances in which an order for costs may be made against a tribunal on appeal must be exceptional. It has also been said in this Court that costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless that tribunal has been guilty of serious misconduct or corruption, or has otherwise acted perversely. These observations should not be thought to prescribe any exhaustive test for the exercise of the costs discretion in these kinds of cases. The circumstances will always need to be considered to see whether any departure from the usual rule is warranted. Of course, different considerations will apply if the tribunal has taken an active role in the proceeding; depending on the nature of that role, such a tribunal may be in the same position in respect of costs as any other party.

[Footnotes omitted]

13    As to the approach revealed in this Victorian case, Mortimer J considered, as, with respect do I, that the explanation for that approach had been pithily set out by Wilcox J in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609, at 612:

It seems to me somewhat hard for the Courts at one time to tell the tribunal that it should not actively intervene to defend its decision and, at the same time, to order the tribunal to pay costs is, without having an opportunity to defend its position, the decision is held to be bad in law.

14    As in EEU20 and as the principal judgement reveals, the decision under challenge entailed an error of law. In this case, it was in the construction and application of the rules of court. But there is no evidence that the registrar engaged in misconduct or exercised powers for an improper purpose. The error here was readily apparent, and indeed ought to have been to a registrar. The type of injustice visited upon the applicant is that type of injustice for which expressed statutory provision in particular cases is made in other cases by the Federal Proceedings Costs Act. In my view, the present is not a case where the circumstances are such as to warrant the awarding of even out of pocket expenses against a submitting party, in this case the registrar.

15    For these reasons the order of the Court is that the application be dismissed.

Associate:    

Dated:    10 February 2022