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Parties: Isa Islam (Applicant) Director-General, Justice and Community Safety Directorate (Respondent)

Representation: Counsel Self-represented (Applicant) N Tarbet (Respondent)

Solicitors Self-represented (Applicant) ACT Government Solicitor (Respondent)

File Number: ACTCA 50 of 2018

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Associate Justice McWilliam Date of Decision: 31 August 2018 Case Title: Islam v Director General, Justice and Community Safety Directorate Court File Number: SC 289 of 2018

MOSSOP J:

1. This is an application for leave to appeal from a decision of the Associate Judge made on 31 August 2018.

2. The decision from which leave to appeal is sought was a decision relating to a costs application made following a successful interlocutory application by the applicant. The material filed in support of the application for leave does not disclose the subject matter of the substantive proceedings. The interlocutory application was one in which the applicant sought leave to issue a subpoena to give evidence. The Associate Judge declined to make a costs order in the applicant’s favour. The reasons for decision given by the Associate Judge were not in evidence.

3. The applicant is a prisoner at the Alexander Maconochie Centre. He is a frequent litigant in this Court: see Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20; Islam v Kocak [2015] ACTSC 120; Islam v Director General of the Justice and Community Safety Directorate [2015] ACTSC 279; Islam v Director General of the Justice and Community Safety Directorate (No 2) [2015] ACTSC 314; Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60; Islam v Director-General Justice and Community Safety Directorate (No 3) [2016] ACTSC 27; Islam v Director General of the Department of Justice and Community Safety Directorate [2017] ACTSC 293.

4. The draft Notice of Appeal indicates that the applicant would seek to put further evidence before the Court, namely, a four page university academic transcript showing that the applicant “does possess Masters-level University qualifications in law and a Bill of Costs”.

5. The argument to be put on the appeal is described in the proposed grounds of appeal, which are as follows:

The grounds of the Appeal are as follows: a) that the Learned Justice erred when she said the Appellant did not possess legal qualifications. The Appellant informed Her Honour that he possessed Masters level University law qualifications in his MBA; in addition the Appellant also possessed legal Masters level University qualifications in his Masters of Human Resource Management. The Plaintiff says these factors were either misconstrued by Her Honour, or not given sufficient weight when Her Honour was considering the critical issue of what law qualifications the Appellant possessed, and then whether a costs order in favour of the Appellant should be granted. The appellant says his possession of two Masters degrees, each having numerous tertiary Units that relate directly to the law mean, that he can be considered a professional with Masters-level legal qualifications in respect of a consideration if a costs order in favour of the appellant should be granted. This proposition is lent further weight when one considers the appellant informed Her Honour verbally of his Masters-level legal qualifications and the numerous hours the appellant had spent in service of pursuing justice in this civil law matter. The precise nature of the appellant’s legal qualifications may be easily seen by perusing his academic transcript from Murdoch University, and, the Appellant says the learned Justice erred by not establishing the precise nature of the Appellant’s legal qualifications.

6. The draft Notice of Appeal seeks an order that the costs order made by the Associate Judge be set aside and a new costs order made. For that purpose, the applicant annexed to his draft Notice of Appeal a document headed “Bill of Costs” which provided:

7. Bill of Costs relating to research, preparation, faxes, scan/email on behalf of myself liaising with Corrections Officers in relation to the successful Form 6.2 interlocutory application heard by the Learned Justice, the Honourable Justice [McWilliam] on Friday 31st August 2018. 2. 58hrs @ $60 per hour = total cost = $3480 3. Legal qualifications (Masters-level University Legal qualifications): Murdoch University Unit: MBS 623.3 Work, Health and Safety Law MBS 501.3 Human Resource Management Law MBS 511.1 Acquisition of Human Resources MBS 502.2 Law for Business

8. In Cachia v Haines (1994) 179 CLR 403, a majority of the High Court found that under the relevant costs provision in New South Wales in force at the time, the costs recoverable were confined to money paid or liabilities incurred for professional legal services and did not include compensation for time spent by a litigant who was not a lawyer in preparing and conducting his case. While the reasons for decision and headnote in Cachia v Haines do use the expression “professional legal services”, that means the services of a lawyer. That is made clear in the Court’s reasons at 409. This decision is prima facie fatal to the prospects of the applicant’s appeal.

9. It appears that the applicant relies upon the recognised exception to that rule provided by the line of authority deriving from London Scottish Benefit Society v Chorley (1884) 13 QBD 872 (‘Chorley’). That decision, which had been followed in Guss v Veenhuizen [No.2] (1976) 136 CLR 47, was considered by a majority in Cachia v Haines to be “somewhat anomalous” (at 411) and a “limited and questionable exception” (at 413). The status of the decision in Guss v Veenhuizen [No.2] was recently considered in in Coshott v Spencer [2017] NSWCA 118, with Beazley ACJ noting that in other jurisdictions Guss v Veenhuizen [No.2] has been accepted as binding precedent on the question.

10. The difficulty for the applicant is that the decision in Guss v Veenhuizen [No.2] is limited to a solicitor entitled to practice. On no view could the completion of Masters level courses on some aspects of the law demonstrate that Mr Islam was entitled to practice as a lawyer. There can be no doubt that he does not fit within the exception derived from the Chorley line of authorities. The governing principle is therefore that in Cachia v Haines. A claim for remuneration for his time spent on the preparation of the Application in Proceedings is therefore bound to fail. In those circumstances, leave to appeal must be refused.

11. The order of the Court is: The application for leave to appeal is refused.

12. Counsel for the respondent applied for costs. The applicant submitted that he was a person of very limited means, being an incarcerated self-represented litigant. In my view, the usual rule should follow. Whether or not the costs order is ultimately worth anything is a matter for the respondent. I consider that in the circumstances the impecuniosity and incarcerated circumstances of the applicant are not sufficient basis for departure from the usual rule.

13. Therefore, I also order that the applicant pay the respondent’s costs of the application.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 25 September 2018

************** Amendment 8 October 2018 Replace “Services” with “Safety” Case Title 8 October 2018 Replace “department” with “departure” Paragraph: [11]