In the recent case of Von Reisner v Commonwealth (No 2) [2009] FCAFC 172, the Full Court of the Federal Court of Australia affirmed the principles in relation to a self-represented litigant's entitlement to costs.

Background

The appellant, a self-represented litigant, successfully had a vexatious litigant order made against her overturned on appeal. The order had prevented her from commencing any proceedings in the Federal Court without leave. The appellant represented herself throughout the appeal (albeit through a registered business, Litigation Services) as well as at first instance.

Following her success, the appellant sought compensation for the time she spent as the owner of the registered business, Litigation Services, in conducting the appeal. She sought the following costs orders:

  1. the Commonwealth of Australia pay the full amount of her costs as taxed,
  2. a personal costs order be made against the barrister who appeared for the respondents at the trial, and
  3. the trial judge be ordered to pay costs.

Judgment

The Full Court held that, as a self-represented litigant, the appellant was not entitled to an order that the Commonwealth pay her costs on the basis of her time spent or earnings lost in the preparation or presentation of her case. Whether the appellant was qualified to act as a paralegal and whether she conducted the clerical and paralegal work related to her case through her registered business was irrelevant. Further, to the extent that the principle in London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 (which permits a successful litigant solicitor to obtain a costs order in respect of the work undertaken in conducting the litigation) has any application in Australia (which is doubtful in light of the High Court's decision in Cachia v Hanes (1994) 179 CLR 403), it does not apply to a paralegal or clerk.

Second, since the appellant was not entitled to a costs order against the respondents, the question of personal liability of the respondent's counsel for those costs did not arise. Even if the appellant was entitled to such costs, there was no evidentiary basis to justify an order for costs personally against the respondents' counsel. Third, it is a well-established principle that a judge is entitled to immunity in respect of any act done by him or her in the exercise of his or her jurisdiction and this prevented a costs order being made against the trial judge. The Full Court also found that there was no basis for any of the "spurious" and "scandalous" allegations made against the trial judge.

Finally, a litigant in person is normally entitled to out-of-pocket expenses actually, necessarily and reasonably incurred. Consequently, an order was made allowing the appellant to be compensated for any of these costs which she could establish she had incurred.

Implications

For self-represented litigants the message is clear. Any costs incurred in the course of litigation (other than reasonable and necessary out-of-pocket expenses) cannot be recovered. Generally, "out-of-pocket" expenses will be insignificant when compared with the real financial cost of litigating in person. This consideration, as well as the obvious benefit a litigant gains from engaging lawyers, should be properly considered before embarking on a course of "in person" litigation.

For lawyers, the message is not so clear. There remains uncertainty in Australia as to what costs a litigant solicitor may recover. That uncertainty aside, the age-old adage – "the lawyer who represents himself has a fool for a client" – would still seem to apply.

For government authorities, who can regularly face actions by self-represented litigants, the principles in this case are important to bear in mind. In particular, the inability of a self-represented litigant to recover costs (other than out-of-pocket expenses) may encourage claimants to obtain legal representation and, in that way, assist public authorities to avoid the difficulties of litigating against self-represented parties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.