Cachia v Colaco

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11001/04 Saviour Laurence CACHIA v Wilfred Servelo COLACO & Anor

JUDGMENT 1 HIS HONOUR: Mr Cachia, an experienced litigant in person, sued his neighbours, the defendants, alleging that a retaining wall, brick fence and associated works existing on their land unlawfully obstructed a right of way. The matter came before the Land and Environment Court where Mr Cachia appeared in person and the defendants were represented by a solicitor. After hearing evidence and argument for a day, the judge adjourned to have a view on the next day, and then decided the case in Mr Cachia's favour, ordering the defendants to pay costs. Mr Cachia was dissatisfied with the result of an assessment made by a Costs Assessor, so it was reviewed on his application by a Panel constituted under Subdivision 4A of Part 11 of the Legal Profession Act 1987. Mr Cachia was also dissatisfied with the panel's determination, and he now brings this proceeding by way of appeal from it. 2 A large number of grounds is set out in the Summons, some of which, such as the first consisting of an assertion that the panel "erred in its assessment of the bill of costs", are so broad that they specify no intelligible ground, and others of which plainly raise issues of fact, not law. By virtue of the terms of s.208L, which is made applicable to the decision of a panel by s.208KI, this appeal, so called, is confined to "a decision of a [panel] as to a matter of law" which arose in the proceedings before the panel. 3 The primary matter of law that arose before the panel was the correct approach to be taken to a bill brought in by a litigant in person, not being a legal practitioner. As to that, the panel applied the law laid down by the High Court of Australia in Cachia v Hanes (1994) 179 CLR 403 where it was held (at 409) that the unqualified litigant in person is not entitled to claim in his bill for "time spent…in preparing and conducting his case", although he may be entitled to claim "ordinary witness's fees" (as it was put at 417) and proper disbursements. 4 As I understood Mr Cachia's argument, he accepts he was limited in the way the panel held he was; indeed, one of his arguments addressed to it was that the original assessor had erred in not treating his bill as confined to disbursements and witness's expenses. However, he contended that the panel, which disallowed some of the claimed disbursements, and reduced others, had failed to give reasons as required by law. Some reasons they certainly gave, in a Statement of Reasons extending to nine pages plus supplementary documents; but the argument was that these reasons were insufficient. The answer to the question so raised must be sought in the Act and Regulations. For s.208KG(1) required that the panel "must ensure" that the certificate setting out its determination issued under s.208KF "is accompanied by: (a) a statement of the reasons for the panel's determination, and

(b) such supplementary information, in relation to the determination, as may be required by the regulations."

And by s.208KG(2) it was provided: "The statement of reasons must be given in accordance with the regulations."

Regulation 68 then provided: "(1) A statement of reasons for a costs review panel's determination that is required by section 208KG of the Act to accompany a certificate issued under section 208KF of the Act must be accompanied by the following information: (a) the total amount of costs for providing legal services determined to be fair and reasonable,

(b) the total amount of disbursements determined to be fair and reasonable,

(c) each disbursement varied by the determination, (d) in respect of any disputed costs, an explanation of: (i) the basis on which the costs were assessed, and (ii) how the submissions made by the parties were dealt with, (e) a statement of any determination as to the person by whom and the extent to which either the fee paid or payable for the application for review or the costs of the costs assessor, or both, are to be paid,

(f) if the determination relates to costs other than party/party costs: (i) if the panel declines to assess a bill of costs under section 208C of the Act, the basis for doing so, (ii) if the panel determines that a term of a costs agreement is unjust, the basis for doing so,

(iii) a statement of any determination under section 208E of the Act that interest is not payable on the amount of costs (or any part of the amount) assessed, or, if payable, of the rate of interest payable . (2) A statement of reasons to which this clause applies may be accompanied by such further information as the costs review panel concerned considers is necessary to clarify the review of a costs assessor's determination." 5 It will be seen at once that Regulation 68 distinguishes, in expressing the obligation of the panel in relation to the reasons it gives, between "disbursements" and "costs". In respect of disbursements, as well as stating "the total amount of disbursements determined to be fair and reasonable", the panel is required in terms only to set out "each disbursement varied by the determination". But, as regards costs, the panel's determination must be accompanied by information complying with para (1)(d), that is to say: "in respect of any disputed costs, an explanation of: (i) the basis on which the costs were assessed, and (ii) how the submissions made by the parties were dealt with". 6 When the detailed requirements for a determination about "costs" are compared with the terse specification for "disbursements", the vital question is whether those terms are to be understood in the strict, technical sense. And the answer is to be found in Cachia v Hanes at 409, where Mason CJ, Brennan, Deane, Dawson and McHugh JJ held the term "costs", as used in the Supreme Court Rules 1970 (NSW), is "confined to money paid or liabilities incurred for professional legal services", and so does not apply to the disbursements of an unqualified litigant in person. There is simply no ground on which, in this respect, the use of the terms in the Legal Profession Act is to be distinguished from that in the Supreme Court Rules. 7 Beyond question the panel's reasons fulfil the requirements of Regulation 68 with respect to disbursements. Furthermore, they satisfy, in my opinion, the expression in s.208KG(1)(a), "a statement of the reasons for the panel's determination". In them, the panel examined the basis upon which claims of the kind made by Mr Cachia should be considered, the relevant circumstances and the respective contentions of the parties, and it reached conclusions which were open to it. In a large number of instances, the panel found that the amounts of charges were not fair or reasonable, and it substituted amounts it considered to be fair and reasonable. In doing so, it made decisions of fact. 8 Even if Mr Cachia had sought (as he did not, although his attention was drawn to the matter, both before and during the hearing), and had obtained leave under s.208M (made applicable by s.208KI) to challenge the panel's findings of fact, he would have been met by a formidable obstacle in relation to the conclusions about the fairness and reasonableness of the claims made by him. For in Hart v Aga Khan Foundation (U.K.) [1984] 1 WLR 994 at 1006 Cumming-Bruce LJ said "quantum…is particularly within the expertise of taxing masters", and in Cachia v Hanes (1991) 23 NSWLR 304 at 321, Handley JA (with the concurrence of Clarke JA) made it clear the "Court does not ordinarily interfere with the decision of a taxing officer on quantum", although the demonstration of an error of law in the approach to the problem will of course open the way to its doing so. No such underlying error of law has been revealed here. Certainly, the mere making of a discretionary decision to disallow an item as unfair and unreasonable cannot reveal error: as Samuels JA (with the concurrence of Clarke JA) said in Cachia v Isaacs (1989) BC 8902724 at 16, "the taxing officer must retain the discretion to decide whether items, recoverable in principle, ought nevertheless to be allowed". 9 Insofar as Mr Cachia contended that, as a reason for the elimination or reduction of an item, a finding that it was not fair and reasonable is insufficient, his argument was also opposed to the decision of Master Malpass in Freeman v McNally [2003] NSWSC 780. That decision, in my opinion, is correct. It is supported by the references made by Hodgson JA (with whom Beazley JA agreed) in Lawrence v M D Nikolaidis & Co (2003) 57 NSWLR 355 at 363 to "reasonable fees" and "a reasonable fee" as expressing the criterion for allowance of a fee on taxation. 10 Although Mr Cachia did not dispute the restriction of his bill to "disbursements", as understood in Cachia v Hanes, he sought to rely on Part 51 rule 23(2) of the Supreme Court Rules as somehow extending his entitlement by its reference to "all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed". But I cannot think that this rule converts an unfair and unreasonable disbursement into a "necessary or proper" one which it embraces. In any case, Samuels JA in Cachia v Isaacs at 16-18 rejected the suggestion that rule 23(2) had any such effect. And his view is supported by the majority of the High Court in Cachia v Hanes at 409. See also Lawrence v Nikolaidis at 364 et seq. 11 Next, Mr Cachia attempted to displace the panel's allowance to him of reduced witness's fees in respect of the day of the hearing, and the day of the view, on the basis that it should have treated him as an expert witness. In the reasons of the panel, reference is made to Mr Cachia's contention that "he gave evidence as an expert witness" and the defendants' contrary contention that he "attended as a litigant and lay witness and not as an expert". The panel noted that it had perused the transcript of the hearing, and it proceeded to analyse what the transcript revealed. That showed, it observed, that "Mr Cachia appeared as a 'litigant in person'. He outlined matters about his case. He dealt with queries from the presiding judge. He cross-examined Mr and Mrs Colaco. He tendered written evidentiary material. He made submissions…." The panel continued: "Mr Cachia can only receive reasonable remuneration for time actually spent giving evidence in court, and for time performing the role of a witness. He cannot receive any form of payment or compensation for outlining his case, cross-examining witnesses of the other parties, observing, making submissions or generally supporting his own case as a litigant in person".

Pointing out that when Mr Cachia came to give his oral evidence "his written material had already been tendered", the panel made a finding that Mr Cachia's own evidence occupied "about 80 minutes", and it allowed him the sum of $222.67. Turning to the following day, when Mr Cachia attended "with the judge and the other party" upon the view at the site for an hour plus travelling and waiting time, the panel held the "primary purpose for Mr Cachia of the view…was…to make submissions, to observe, and to deal with the litigation as a litigant in person for the purpose of the view". Nevertheless, it allowed him the sum of $83.50 on the basis that he said he answered some questions from the judge during the view over a period the panel estimated at "not…more than 30 minutes". Having regard to the clear indication in the transcript that the hearing of evidence, as well as addresses, had concluded on the previous day, leaving only what was described as a "site inspection", this seems generous to Mr Cachia. Not only that, both the decision in respect of the hearing and that in respect of the view are decisions of fact from which Mr Cachia has no appeal. 12 It cannot be said that a point of law arose on the basis the evidence left it open to the panel only to find each of Mr Cachia's attendances was in the character of an expert witness entitled to fees exceeding those allowed, as he claimed. Careful perusal of the transcript shows Mr Cachia gave evidence quite removed from any expertise he may have as an electrical engineer. It is true that, upon the reading of the affidavits, the transcript shows a paragraph in an affidavit of Mr Cachia was objected to insofar as it stated a conclusion that certain work was "substandard [and] unworkmanlike", but was allowed because Mr Cachia was an engineer. The transcript does not reveal whether the work bore any relation to any matter connected with electrical engineering, nor whether the judge was informed that Mr Cachia, before his retirement, was an electrical engineer employed by the Metropolitan Water Sewerage and Drainage Board. The only evidence before me as to the issues that arose at the hearing in question is that the judge identified them as arising on the basis of a claim by Mr Cachia to have the benefit of "an unimpeded right of carriageway" in respect of which his Torrens title showed his land as the dominant tenement, in answer to which the defendants raised a question of the jurisdiction of the Land and Environment Court as well as questions as to the nature and circumstances of the interference with the use of the right of way and questions of discretion. None of these issues required or in fact gave rise (so far as the transcript shows) to any expert opinion from Mr Cachia as an electrical engineer. He gave evidence about such matters as whether a large tree had for many years blocked the way, whether a brick construction had done so, what was the nature of the dispute between Mr Cachia and Mr and Mrs Colaco who were relatively recent purchasers of the property on which were the obstructions in question, and various matters related to these. Only once, in the course of his evidence, could I find any reference to Mr Cachia's qualification, when, in the course of cross-examination about whether "there was [prior to the acts he complained of] a part of a wall built across the right of way", Mr Cachia was asked: "Can you, as an engineer, can you think of any reason why an owner would want to put up a high line of bricks along the back of the right of way without some support transversely across the right of way?"

to which he replied: "Hypothetically of course I would say that may be they wanted to level the right of way a little bit so that it would be more passable to vehicles",

and then added in answer to a further question: "No, I'm not saying that happened, I told you that I have no clear recollection of that retaining wall if it was, in fact, a retaining wall at the rear".

The last answer is typical of the nature of Mr Cachia's evidence generally, being concerned with recollection, not expert opinion, while the cross-examiner's phrase, "as an engineer", is plainly introduced as a challenge to there being any possible basis for the existence of an alleged visible obstruction to the way consistent with Mr Cachia's case. It is not an example of Mr Cachia offering expert evidence in support of his own claim. 13 On the material presented to the panel, including the transcript of his evidence, it was plainly open to them to conclude that Mr Cachia should be allowed no more in respect of witness's fees than the amounts they fixed. Since I have referred to Mr Cachia's affidavit, I should, perhaps, for completeness, add that, of course, "recompense for time spent in preparing his own affidavit is not part of the ordinary witnesses' fees, but is time spent in the preparation of his case" for which a litigant in person cannot claim: Lawrence v Nikolaidis at 370. 14 Mr Cachia contended the panel had erred in failing to consider two pieces of material that were before it, his letters to it of 9 November 2003 and 22 November 2003. The basis of this contention is that neither letter is listed in the panel's statement of reasons under the heading "Material Considered". But the letter of 22 November 2003 is expressly mentioned, and several lines from it are quoted verbatim, later in the panel's reasons, so it was certainly not omitted from their consideration. It follows a failure to list a letter under the heading mentioned cannot be conclusive; and the reason is not far to seek since the documents that were listed include both "Mr Cachia's file" and the "contents of Taylor Kelso's file" (the file of the defendants' solicitors), each of which would be expected to contain copies of the letters in question. In any case, not only is the letter of 22 November 2003 expressly dealt with by the panel; although Mr Cachia's letter of 9 November 2003 is not separately identified, every single point mentioned in it is dealt with, item by item, in the panel's reasons. This argument put by Mr Cachia must be rejected. 15 Mr Cachia asserted the panel had erred in not recognising his right to have work done by an agent, but I can see no basis in its reasons for this assertion. 16 Mr Cachia challenged the disallowance of items claiming for the redoing of mistaken work, for the typing of notes to assist the presentation of the case at the hearing by cross-examination of the defendants, and for some attendances at the Land Titles Office. These points do not raise any question of an error of law. It is to be remembered that Hodgson JA in Lawrence v Nikolaidis at 372 denied the allowability of "expenses…in relation to such matters as…making notes with a view to giving evidence or giving instructions, and matters of like nature". 17 Mr Cachia also challenged the panel's decisions as to costs, which did not disturb in that respect the order made upon the costs assessment, but ordered Mr Cachia to pay the costs of the review by the panel. As the review corrected some errors made upon the original assessment but did not lead to any increase in the amount recoverable by Mr Cachia (indeed, there was a reduction), the costs determinations seem to me to have been entirely appropriate. This ground also fails. 18 By way of a general argument pleading for a liberal treatment of bills of costs brought in by litigants in person, Mr Cachia urged that their opponents in litigation receive many benefits, including a shortening of proceedings by the elimination of technical legal points. This argument is quite contrary to the experience of Courts to which the majority of the High Court drew attention in Cachia v Hanes at 415: "Whilst the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognize that the presence of litigants in person in increasing numbers is creating a problem for the courts. It would be mere pretence to regard the work done by most litigants in person in the preparation and conduct of their cases as the equivalent of work done by qualified legal representatives. All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself. Even so, litigation involving a litigant in person is usually less efficiently conducted and tends to be prolonged. The costs of legal representation for the opposing litigant are increased and the drain upon court resources is considerable." (Footnotes omitted).

However, in this Court Mr Cachia's case must be dealt with upon settled principle and not by the creation of a special rule based on some view about the effects on others (whether harsh or relatively mild) of litigation conducted by litigants in person. 19 In the result, the summons is dismissed with costs. *****************************

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