In the recent case of Von Reisner v Commonwealth (No 2)
 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.
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
the Commonwealth of Australia pay the full amount of her costs
a personal costs order be made against the barrister who
appeared for the respondents at the trial, and
the trial judge be ordered to pay costs.
The Full Court held that, as a selfrepresented 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
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
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
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
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.
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