Cachia v Isaacs

In my judgment delivered on 19 April 1999 dismissing the Council's class 4 application seeking a mandatory order against the Respondent in respect of conditions of the Council's approval of structural engineering drawings, I made the following order in respect of costs: 3. The question of costs be reserved with liberty to the Respondent to apply for costs and expenses in the event of him not reaching agreement with the Council as to the payment of those costs and disbursements and expenses.

The Order was made in response to the Respondent's request for a costs order immediately upon pronouncement of my extempore judgment dismissing the proceedings. The Respondent, who is a registered architect who lives and practices in Melbourne, represented himself in the proceedings and at the hearing. He also gave evidence.

Paragraph 36 of my reasons for judgment record my response to the Respondent's request for costs and the Council's reply thereto. It states:

Accordingly I order that the application be dismissed and that the exhibits be returned to the parties upon publication in written form of my reasons for decision. CHERNOV: Could I ask, since I have incurred a lot of costs, I haven't been represented, but it's something like 40 hours and my travelling time, would it be appropriate to make order for my costs? HIS HONOUR: Mr Baxter on the question of costs? BAXTER: As your Honour knows, costs before the Court represent professional costs of attending proceedings. There may be an entitlement to an order for expenses but that would be the sum total. HIS HONOUR: Yes thank you Mr Baxter. HIS HONOUR: Mr Chernov, there are limitations on costs orders that can be made to unrepresented people, but you should be entitled in this case to your expenses of coming to Court, of witness expenses for example, of witness expenses of calling Mr Gattone. What I suggest you do is that you provide Mr Baxter with a schedule of costs that you claim, your travel expenses and the like, your time in Court today, whether any claim is made in relation to Mr Gattone, and that you in the first instance give that statement of costs to Mr Baxter and if there is an agreement for the payment of those costs, so be it. If there is not then you may have leave to provide the Court with a copy of the costs and expenses that you claim. There will be no need for you to come back to Sydney to argue that matter. I will reserve the question of costs on the basis that prima facie you would be entitled to an order to your expenses, your time here, as if a witness, and Mr Gattone's expenses, if that's what you are going to claim. I don't think you will be entitled to claim for your hourly rate of the amount of time you have put into this case, because as Mr Baxter says, the costs are confined to legal costs, that is what parties get when they get an order for costs, they get an order for how much costs are incurred by their respective lawyers. Although I will formally reserve the question of costs, I grant you liberty Mr Chernov to apply to the Court for costs and expenses which I would invite you to detail, but in the first instance to submit the bill to Mr Baxter and he can get some instructions and then if the matter is not resolved there then I give you liberty to simply, by letter, to write to the Court enclosing your bill and simply say that if this is the case, that you put the bill to the Council but the Council does not pay the costs and you ask the Court to make an order in your favour. That's the way to go. Do you understand how to do it? CHERNOV: Yes very clear thank you. HIS HONOUR: So that I make the following formal orders:

1. The application be dismissed.
2. The exhibits be returned to the parties at the same time as the reasons in writing are published.
3. The question of costs be reserved with liberty to the Respondent to apply for costs and expenses in the event of him not reaching agreement with the Council as to the payment of those costs and disbursements and expenses

By letter dated 6 March 2000 addressed to the Court's Registrar, (a copy of which was apparently forwarded to the Council's Solicitors), the Respondent has provided the Court with details of the expenses he has claimed from the Council and has provided the Court with relevant correspondence between himself and the Council's Solicitors concerning his claim.

I take it that in writing to the Court, the Respondent has exercised the liberty to apply for costs that I granted in Order 3, in the precise manner that had been contemplated.

The correspondence indicates that the Respondent made a claim in respect of "costs for travel and time attending Court" totalling $1,468 made up as follows: Melbourne Sydney Melbourne - economy 579 Taxi costs and airport parking 59 Attending court 3 hours @ 100 300 Travelling time 7 hours @ 50 350 Witness costs 3 hours @ 60 180 $1,468

The Council's Solicitor's initial response to this claim was to recommend payment of $818 in respect of the items claimed, except for the Respondent's claim to travelling expenses ($350) and attending Court ($300).

Ultimately, the Council has paid, or agreed to pay the Respondent, all but his claim for "travelling time" (ie $350).

The Respondent, in referring his claim to the Court, has asked whether he is entitled to payment in respect of his "time coming to Court as well as being in Court'.

It can at once be appreciated that the question raised by the Respondent, and the only issue in dispute between the parties, is in truth, a matter for assessment of costs which ordinarily would be undertaken pursuant to the provisions of the Legal Profession Act 1987 Pt 11.

As such, the issue would be conventionally dealt with by way of assessment following the making of a costs order in favour of the Respondent, such as was contemplated in my judgment delivered on 19 April 1999. Such an appropriate costs order would be to the following effect. The Applicant pay the Respondent's out of pocket expenses (including witness expenses) incurred in the proceedings in the sum agreed or failing agreement, as assessed.

However, in view of the small amount in dispute $350 (in the context of a small overall claim of $1468) it would appear to be entirely inexpedient and unnecessary to set in train the detailed procedures for the assessment of costs under the Legal Profession Act .

Instead of ordering that the costs be assessed under the Legal Profession Act 1987, it is obvious that the preferable course is for the Court to determine the issue in dispute, as part of a costs order that itself determines the precise amount of the costs to be paid.

Though uncommon for such costs orders to be made in civil proceedings, I am satisfied that such a course is available to the Court, by virtue of the provisions of the Land and Environment Court Act 1979 s 69(2)(b) which provides

Subject to the rules and subject to any other Act - (b) the Court may determine by whom, and to what extent costs are to be paid.

In support of this approach, it is to be noted that the Legal Profession Act 1987 s 208I, provides that the provisions of Div 6 of the Act ("Assessment of costs") do "not limit any power of a Court or …to determine in any particular case the amount of costs payable….."

Accordingly, I propose to determine the precise amount of costs payable in this case. Again, in the interests of economy, I propose to deal with the matter, without calling upon the parties to further address me on the issue in dispute (beyond what has been expressed in the correspondence passing between the Respondent and the Council's Solicitors). Not only does that issue involve such a small amount ($350), but it does not, in truth, involve any principle of law that has not already been settled by existing authority.

The established principle is that a successful litigant in person (not being a solicitor acting for himself or herself) is not entitled to party and party costs but is entitled only to "out of pocket expenses" (including witness expenses) properly and reasonably incurred in the proceedings.

That principle, limiting recovery to out of pocket expenses, has been clearly established in respect of a party and party costs order requiring taxation under the Supreme Court Rules: see Cachia v Isaacs (unreported, Court of Appeal 23 March 1989), applied by the Court of Appeal (by majority) in Cachia v Hanes (1991) 23 NSWLR 403 and affirmed on appeal by the majority decision of the High Court of Australia reported in (1994) 179 CLR 403.

However, having established the principle limiting recovery by a successful litigant in person, the cases do not clearly define the character or limits of those "out of pocket" expenses other than to require that they be "properly and reasonably incurred": see the Court of Appeal's judgment in Cachia v Hanes at 320 and 321 (per Handley JA), noting that the special leave to appeal in that case granted by the High Court was confined to the disallowance of the appellant's claim for compensation for the loss of his time spent in the preparation and conduct of his case and for out of pocket expenses, being travelling expenses, associated with the preparation and conduct of his case. (The Appellant failed on both issues in the High Court's majority judgment.)

The relevant principle (limiting recovery of costs by a successful litigant in person to out of pocket expenses) established in Cachia v Hanes in my opinion, applies to the assessment of costs that is now provided for in the Legal Profession Act, Pt 11: see in particular s 208F and s 208G which indicate that the costs so assessed are principally referable to work undertaken by a barrister or a solicitor: see also s 174 which comprehensively outlines the "rights" conferred by Pt 11 upon "any client of a barrister or solicitor".

However, Div 5 of Pt 11 contains provisions relating to "costs fixed by regulations" such costs include:

fixing an amount of costs for a matter that is not a legal service but is related to proceedings ( for example, expenses for witnesses): vide s 196(1)(c) .

In this respect, it may be noted that Table 3 to Schedule G to the Supreme Court Rules specifies the maximum amount that a successful litigant may recover in respect of witness' charges.

Relevantly, the Table includes the following matter: Item 1 Barristers, solicitors, accountants, medical practitioners, surveyors, architects, pharmacists and other professional persons attending to give evidence $160-300 $125-200 or per hour

Item 2 refers to the amounts payable to such persons who are called to give " expert evidence and not evidence of fact ". These amounts include " travelling to court, to and from home, place of practice etc ".

Item 3 makes provision for "travelling and other allowances".

It is apparent from this Table that the allowances include payment for time spent in travel to and from the witness's home or office.

This was the reading of the allowances provided in Table 3 (Schedule G) adopted by Bryson J in Danieletto v Khera (1995) 35 NSWLR 684 at 687 where his Honour said:

Since the mid-nineteenth century rules of court have usually contained provisions which set rates at which the time of witnesses of various classes is to be compensated, showing recognition that they are to be paid for their own time as well as their expenses, although their time is to be valued on an arbitrary basis and not by close inquiry into each individual's circumstances: see now Table 3 - Allowances to witnesses in Schedule G to the Rules of Court, which recognises in an indirect way that witnesses are to be paid allowances for their own time.

I respectfully agree, recognising that his Honour was dealing with the question of the entitlement to expenses of a non party served with a subpoena.

Allowing recovery of such an amount by the Respondent (as an aspect of witness expenses) is not an indirect way of compensating him for time spent in preparing and/or conducting the litigation, an approach disapproved of by the majority High Court judgment in Cachia in the following passage at 417:

….in contrast to the approach adopted in some cases where courts have treated the loss in earnings of a litigant incurred in the course of the presentation or conduct of his case as a disbursement (45). Clearly, that is merely an indirect way of recompensing a litigant for time spent in the preparation or conduct of his case which, if it is not contemplated by the relevant legislation or rules, is not permissible.

(45) See Kerridge v. Foley (unreported; Supreme Court of NSW; 19 August 1970); Secretary, Department of Foreign Affairs and Trade v. Boswell [No. 2] (1992), 39 F.C.R. 288; cf. Petrunic v Barnes, [1989] V.R. 927; Australian Blue Metal Ltd v. Hughes, [1970] 2 N.S.W.R. 119.

It is to be noted that immediately following that statement, the majority judgment states (by way of necessary qualification)

Of course, a litigant who qualifies as a witness is entitled to the ordinary witness's fees.

In my opinion, the Respondent is entitled to the disputed amount as part of allowable witness expenses on the basis that he gave evidence at the trial and in so doing, was a necessary witness. Accordingly, the total amount claimed for witness expenses ($300 for court attendance and $350 for travel from Melbourne to Sydney) is in my opinion, a reasonable claim and represents a reasonable allowance for witness expenses, in addition to the out of pocket expenses incurred in the airfare etc.

In allowing the disputed amount, I emphasise that it contains no element of compensation of the Respondent for any professional time lost in the preparation or presentation of the litigation.

For all the foregoing reasons, I make the following order:

The Respondent shall pay the Applicant's out of pocket expenses (including witness expenses) reasonably and necessarily incurred in the proceedings in the sum of $1468 .

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.