Cachia v The Hills Shire Council

Cachia v The Hills Shire Council - [2010] NSWLEC 136 - NSWLEC 2010 case summary — Zoe

[16]

The entitlement to payment of expenses 27 As Mr Cachia claims, there are two sources of power of the Court to order the Council to pay Mr Cachia's costs and expenses. First, there is the cost power under s 98 of the Civil Procedure Act. The Court's discretionary power to order costs is subject to the rules of the Court. Part 3 r 3.7 of the Land and Environment Court Rules regulate the discretion in relation to proceedings in Classes 1, 2 and 3 of the Court's jurisdiction. Rule 3.7(2) provides that: "The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances." 28 Circumstances in which the Court might consider the making of a cost order to be fair and reasonable include those specified in r 3.7(3), including that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law and the determination of such question was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings (r 3.7(3)(a)(ii)); that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings (r 3.7(3)(c)); and that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where the claim or defence did not have reasonable prospects of success or where to commence or continue the claim, or to maintain the defence, was otherwise unreasonable (r 3.7(f)). 29 As the High Court decision in Cachia v Hanes (1994) 179 CLR 403 makes plain, the costs for which rules of court provide (such as s 98 of the Civil Procedure Act and r 3.7 of the Land and Environment Court Rules) are confined to money paid or liabilities incurred for professional legal services and do not include compensation for time spent by a litigant in person who is not a lawyer in preparing and conducting his case. 30 However, an order for costs can include reimbursement of expenses incurred in the proceedings. A litigant in person is entitled to be reimbursed for his or her out-of-pocket expenses incurred in and for the purposes of litigating the proceedings. 31 Hence, the Court would have power to order, under the Court's costs power, the Council to reimburse Mr Cachia for his out-of-pocket expenses incurred in and for the purposes of the appeal, if the Court considers the making of such an order is fair and reasonable in the circumstances. 32 Secondly, the Court has power under s 181 of the Local Government Act. That section provides: "(1) The Land and Environment Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person on whom an order is served for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order, but only if the person satisfies the Court that the giving of the order was unsubstantiated or the terms of the order were unreasonable.

[24]

44 First, I consider it is fair and reasonable in the circumstances to order the Council to pay certain of Mr Cachia's out-of-pocket expenses incurred in and for the purpose of the appeal. The circumstances in which the order of 4 January 2010, which was the subject of the appeal, was stated to have been issued were not the circumstances specified for item 12 in Column 2 of the Table to s 124 of the Local Government Act. The order was outside power. This was the basis for the orders the Court made by consent on 29 April 2010. The appeal was therefore resolved on a preliminary question without determination of the merits. 45 I consider Mr Cachia should be reimbursed for the expenses incurred in bringing the appeal so that this resolution was able to be achieved. This includes the filing fee of $749 to commence the appeal which, by reason of the orders made by the Court, has been successful. 46 The fees for lodging two applications under the Freedom of Information Act 1989 to the Council to obtain documents (the original application and then the review application) are not expenses incurred in, but rather are external to, the appeal and should not be reimbursed. 47 The filing fee on 3 April 2010 was in respect of Mr Cachia's notice of motion which was heard and determined by the Acting Assistant Registrar. Although this notice of motion sought an order for the transfer of proceedings from Class 1 to Class 2, this order was not contested by the Council. The notice of motion also sought other orders including orders that Mr Cachia be given leave to supplement his statement of facts and contentions with further facts and to raise further contentions. Mr Cachia was unsuccessful in obtaining such leave and also in obtaining the other orders he sought, except for the transfer order, which was by consent. 48 I do not consider it is fair and reasonable for Mr Cachia to be reimbursed for the filing fee for this notice of motion in respect of which Mr Cachia was largely unsuccessful. 49 Mr Cachia by further notice of motion sought to review the decision and orders of the Acting Assistant Registrar and to that end also requested and paid the fee for a transcript of the hearing, decision and orders of the Acting Assistant Registrar. That review did not take place because of the resolution of the proceedings by reason of the order being unsubstantiated. 50 There was no resolution in Mr Cachia's favour, therefore, of this further notice of motion. I do not consider it fair and reasonable that Mr Cachia be reimbursed for the filing fee for this further notice of motion or for the fee for the transcript request in circumstances where it has not been established that Mr Cachia would have been successful. 51 A further reason for my conclusion that is it not fair and reasonable to order the payment of the filing fees for these two notices of motion and for the transcript request fee is that they do not relate directly to the reason for the appeal being resolved in Mr Cachia's favour. The orders Mr Cachia sought in these notices of motion were unrelated to the power question which lead to the appeal being upheld and the order being revoked. 52 Mr Cachia's expenses of typing and collating, photocopying and photographs may be said to be incurred in the appeal. Mr Cachia has not proven by admissible evidence the precise quantum of these expenses. However, I consider that it is fair and reasonable to make some allowance for such types of expenses. I should make a deduction from Mr Cachia's claimed expenses as some part of these expenses would relate to the unsuccessful notices of motion. I will allow $300 for typing and collating, $80 for photocopying and $31 as claimed for photographs. 53 I do not allow the claimed travel expense to and from the Court. I note such expense was not allowed in Cachia v Hanes at 417. I also do not allow the claimed travel expense to and from the site as an expense incurred in and for the purpose of the appeal. 54 Finally, I will allow Mr Cachia's filing fee for the notice of motion for costs as Mr Cachia will be partially successful in obtaining an order for payment of his expenses. It is fair and reasonable that he be reimbursed this filing fee.

[25]

The Court should award compensation for certain expenses 55 I turn to consider whether expenses that I have determined should not be made the subject of a costs order, should nevertheless be made the subject of an award of compensation under s 181 of the Local Government Act. I note in Gardiner v Hornsby Shire Council, Pearlman J considered that (at [18]): "However, Mr Clay submitted and I think he is right, that s 181 refers to expenses incurred as a consequence of the order and not costs of litigation. It is no doubt true to say that the litigation in this Court has been brought about as the consequence of the order because the litigation arises under s 180, which provides for an appeal against the order. But the costs of that litigation are costs of the litigation and not expenses incurred as a consequence of the order." 56 I am not convinced that s 181 of the Local Government Act is so restrictive. It may be that certain expenses incurred in litigation are capable of falling within the statutory phrase in s 181(1) of "any expense incurred by the person as a consequence of the order". However, it is not necessary for me to determine this question in this case as I can adjudicate the claims on other grounds. 57 I consider that the filing fees for the notice of motion heard by the Acting Assistant Registrar and the notice of motion to review the decision and orders of the Acting Assistant Registrar and the transcript request fee do not meet the description of being expenses incurred as a consequence of the order; they are too remote. 58 The fees for the freedom of information application and review application are different. Mr Cachia made freedom of information requests to the Council for documents relating to the issue of the order of 4 January 2010. I consider this is a form of investigation of the order and could be described as expenses incurred by Mr Cachia as a consequence of the order. 59 I note that s 181(1) does expressly include the cost of any investigative work carried out by the person as a consequence of the order. Whilst making a freedom of information application is not work, it nevertheless does involve investigation of the circumstances in which and the reasons for which the order was made. I would therefore allow the combined sum of $70 for these fees for the freedom of information applications. 60 I do not consider the travel expense to and from the Court to be an expense incurred as a consequence of the order; it is also too remote. I consider, however, that the travel expense to the site to investigate the land and works, the subject of the order, is capable of meeting the description of being an expense incurred as a consequence of the order. The precise number of visits and the quantum of expense has not been proven, but I will allow $200 as a fair allowance. 61 The work done at the site by the tradesman in opening the kerb exit hole and clearing silt meets the description of an expense incurred as a consequence of the order. The $150 claimed is the cost paid by Mr Cachia to the tradesman and should be allowed in full. 62 I do not consider I should allow any more under s 181 of the Local Government Act for typing and collating or for photocopying than I have already allowed under the costs power.

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Judgment (27 paragraphs)

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Cases Cited (2)