Background
Ali Bilal sought judicial review of the Australian Information Commissioner’s decision declining to investigate his privacy complaint against EML Group. Following submissions and an inquiry from the Court about possible agreement, the parties consented to orders setting aside the Commissioner’s decision, referring the complaint back for determination according to law, and declaring that the complaint had been validly made under s 36 of the Privacy Act 1988 (Cth).
The parties could not agree on costs. Bilal, who represented himself throughout the proceeding, argued that costs should follow the event because he had succeeded. The Commissioner submitted that any award should be confined to filing or setting-down fees proved by receipts, relying on authority that self-represented litigants generally cannot recover compensation for their own time and effort.
The Court’s Holding
Lenehan J ordered the Commissioner to pay Bilal’s costs of the application. The Court found no reason to depart from the usual rule that costs follow the event, noting that the consent orders substantially gave Bilal the relief sought in his judicial-review application.
The Court declined to limit the costs order at this stage to specified filing or setting-down fees. Following the approach taken in an earlier proceeding between the same parties, the Court held that the expenses or fees Bilal can actually recover are matters for taxation. If he cannot establish recoverable costs, the Commissioner will not be required to pay them.
Key Takeaways
- A successful self-represented litigant may receive a general costs order even though the recoverable amount could be limited.
- The existence of an entitlement to costs is distinct from determining which expenses can be proved and recovered on taxation.
- A court need not restrict the terms of a costs order in advance merely because the successful party had no solicitor on the record.
Why It Matters
The decision distinguishes between making a costs order and quantifying the costs recoverable under it. Although self-represented litigants generally cannot claim compensation for their own time and effort, that limitation does not necessarily justify denying them the ordinary form of costs order after success.
For practitioners in judicial-review proceedings resolved by consent, the judgment also confirms that substantive success may support the usual costs consequence even where the recoverable sum remains uncertain and must be resolved through taxation.