Case: Cachia v Hanes [1994] HCA 14 ; (1993-1994) 179 CLR 403
Outcome: applied
was his right, Mr Russell appeared on his own behalf. In so doing, he did not thereby become entitled to any award of costs in respect of the time which he spent in the preparation for and presentation of his case. The reason why that is so was explained by the High Court in Cachia v Hanes [1994] HCA 14 ; (1993-1994) 179 CLR 403 at 410-411: It has not been doubted since 1278, when the Statute of Gloucester ((4) 6 Edw.I c.1.) 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 expences of his travell and losse of time" ((5) Coke, Second part of the Institutes of the Laws of England at 288. See also Howes v Barber [1852] EngR 15 ; (1852) 18 QB 588 at 592 [1852] EngR 15 ; (118 ER 222 at 224); Dowdell v The Australian Royal Mail Co. (1854) 3 El and Bl 902 at 906 [1854] EngR 604 ; (118 ER 1379 at 1381).) These types of costs do not therefore fall within the terms of the power to award costs conferred on the Court by s 43 of the Federal Court of Australia Act . Absent such statutory authority, the Court has no power to award any costs. Mr Russell did not seek an award of costs in respect of the time which he spent in the preparation for and presentation of his case but he did seek disbursements related to his appearance. The latter though are what Coke termed in the passage quoted "the expences of his travell". In my opinion, there is no power to award Mr Russell such costs. This must follow from the proposition that he is not entitled to any award in respect of the costs of the appearance itself. Such travel expenses were not allowed in Cachia v Hanes [1994] HCA 14 ; (1993-1994) 179 CLR 403 at 417, although that outcome is there described as one within the discretion of the taxing officer. Having regard to Coke's observation, the disentitlement might, with respect, have been regarded as absolute rather than discretionary. The position is different in respect of the disbursements incurred by Mr Russell in securing the attendance of Mr McKenzie. These are disbursements in respect of a witness. There is power to make an award in Mr Russell's favour in respect of them. The amounts claimed in this regard strike me as reasonable, even modest. I therefore intend to make an order in Mr Russell's favour in respect of these disbursements. I shall also order that the amount thereof be set off against the percentage costs which I am disposed to award to the Commissioner. I conceive that the interests of justice are best served by an express recognition in Mr Russell's favour of disbursements intimately associated with an issue upon which he enjoyed conspicuous success rather than by some arbitrary adjustment of a percentage of costs otherwise appropriate to award in favour of the Commissioner. It will be apparent from the indication in the preceding paragraph as to the awarding to the Commissioner of a percentage of his costs that I am not disposed to make no order as to costs. Such an order is sometimes made as a matter of discretion in, for example, a case where each party is legally represented and each has enjoyed degrees of success and failure on issues such that, albeit as a matter of advance impression, were there to be issues or percentage based taxations of their respective costs and mutual set off of the resultant awards the end result might be that neither party came to owe the other anything in respect of costs. Even assuming that the parties had enjoyed roughly equal measure of success, to adopt that approach in this instance would be but a different way of giving impermissible recognition by way of set off to costs associated with Mr Russell's case preparation and appearance.