Federal Court of Australia

Oknalux Pty Ltd v Wilczynski (No 2) [2023] FCA 1444

ORDERS

THE COURT ORDERS THAT:

1.    Leave to the applicant to file a notice of discontinuance.

2.    The trial listed to commence on 11 December 2023 with 10 days set aside is vacated.

3.    The applicant is to pay the respondents’ disbursements in the form of:

(a)    Court fees paid by them; and

(b)    Fees paid by them to any interpreter or translator,

such fees to be identified in an affidavit, together with supporting documentation, to be filed and served by the respondents by on or before 28 November 2023.

4.    The quantum of any fees is to be assessed by a Registrar of the Court in the absence of agreement.

5.    Save for the disbursements the subject of order 3 above, there be no order as to costs.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    This matter is listed for trial for 10 days commencing on 11 December 2023.

2    On Thursday 9 November 2023, the solicitors for the applicant emailed chambers to advise that they had been instructed to seek leave to discontinue this action.

3    The respondents are self-represented.

4    Pursuant to r 26.12(2)(b) of the Federal Court Rules 2011 (Cth) (FCR), the applicant requires leave of the Court to file a Notice of Discontinuance unless it is filed by consent before judgment has been entered in the proceedings. The respondents have refused to consent and have requested that the case management hearing listed for today proceed.

5    By way of oral application made today, the respondents, who are self-represented, seek their costs of the action be paid by the applicant.

6    Pursuant to Part VI, s 43(2) of the Federal Court Act 1976 (Cth), the Court has a wide discretionary power to award costs: Orientile Pty Ltd v Salitrosa Holdings Pty Ltd (No 2) [2021] FCA 1224.

7    However, in the case of self-represented litigants, in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 410-411, the High Court set out the relevant principle in respect of the costs of a litigant in person. Although the matter concerned the rules of the New South Wales Supreme Court, the principle is also applicable in this Court:

To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner’s employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.

This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) 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 expenses of his travelling and losses of time’.

8    In Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 at [1] (Kiefel CJ, Bell, Keane and Gordon JJ) in referring to Cachia said that as a general rule a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation. See also Guss v Veenhuizen [No 2] [1976] HCA 57; (1976) 136 CLR 47, 51 (Gibbs ACJ, Jacobs and Aickin JJ).

9    Accordingly, a litigant appearing in person may not receive any remuneration for work done in the preparation of a case or for appearing in Court, any compensation for loss of time or any disadvantage or inconvenience suffered.

10    However, I accept the respondents have incurred Court fees and other fees in defending this matter. The applicant does not contend that the fees are not recoverable and did not speak against the respondents recovering limited disbursements.

11    In all the circumstances, there will be orders that:

(1)    Leave to the applicant to file a Notice of Discontinuance.

(2)    The trial listed in this matter due to commence on 11 December 2023 be vacated.

(3)    Save that the applicant is to pay the respondent’s disbursements in the form of court fees and translator/interpreter fees paid by them, such disbursements to be identified in an affidavit be filed and served by the respondents by or before 28 November 2023 to be assessed by a Registrar of the Court in the absence of agreement.

(4)    Save for the matters in order 3 above, there be no order as to costs.

Associate:

Dated:    14 November 2023