Lawrence v Nikolaidis

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC 10090 of 2002 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40803 of 2002

MEAGHER JA BEAZLEY JA HODGSON JA

Wednesday 2 July 2003 WAYNE LAWRENCE v M D NIKOLAIDIS & CO

By statement of liquidated claim in October 1997, the claimant, Mr Lawrence, sued the opponent, Mr Nikolaidis, a solicitor, for $38,000.00 for work done. The proceedings were defended. The magistrate who heard the proceedings entered judgment for the defendant. He ordered that the claimant pay the opponent's costs, assessed on the basis of a two days' full hearing.

The claimant appealed to the Supreme Court (Sully J) from the Magistrate's decision. That appeal was dismissed with costs.

In the period August-November 1999 the opponent submitted two bills of costs to the claimant, one in respect of each of the above proceedings. Each bill was referred for to a costs assessor for assessment. The claimant disputed this assessment, eventually reviewed by Master Harrison, who could discern no error of law. The claimant then sought, and was granted, leave to appeal.

HELD per Hodgson JA (Beazley JA agreeing)

1. A litigant, whether represented or not, may, though not as a matter of course, be entitled to some witnesses' expenses, in addition to expenses for time actually spent giving evidence in court.
2. Expenses may be allowed to represented litigants for a conference with a solicitor and/or barrister, in so far as this is necessary to prepare for giving oral evidence or to prepare an affidavit. In the case of a solicitor litigant, the same expenses may be allowed in connection with such a conference had with a barrister.
3. Where the self-represented litigant is a solicitor, the solicitor can recover the reasonable costs of doing what is truly professional work in relation to the case. However, just as a represented litigant cannot recover expenses incurred in attending to give instructions as a party (as opposed to a witness) or to observe and/or superintend the conduct of the case, neither can a self-represented solicitor recover expenses in respect of those matters.
4. Unrepresented litigants who are not solicitors are extremely limited in the costs they can recover, and the exception favouring solicitors is regarded as anomalous. The exception should be applied carefully rather than loosely. Solicitor litigants should not be allowed witness's expenses on a more accommodating basis than other litigants. Thus, if a solicitor litigant is seeking witness's expenses additional to those occasioned by actually giving evidence or attendance at court for that purpose, and (where a barrister is instructed) a conference with the barrister for that purpose, it is necessary to provide material to show that this is justified.

HELD per Meagher JA (contra)

1. A solicitor acting for himself is entitled only to charge for those reasonable expenses which required the exercise of professional legal expertise. This is supported not only by general principle but also by the decision of the High Court in Cachia v Hanes (1994) 179 CLR 403.
2. This principle has nothing to do with the broad question of reasonableness; it has everything to do with the narrower question of whether the item in respect of which costs are claimed can be accurately classified as one requiring the exercise of professional skill.

ORDERS i. That the appeal be allowed; ii. That the respondent to pay the appellant's costs of the appeal and to have a Suitors' Fund Act certificate if otherwise entitled; iii. That the amount of the assessment of costs be reduced by $5,000.00, to $22,409.56, as at 22 May 2001.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40803 of 2002

MEAGHER JA BEAZLEY JA HODGSON JA

Wednesday 2 July 2003 WAYNE LAWRENCE v M D NIKOLAIDIS & CO Judgment 1 MEAGHER JA: This is an appeal on the unexciting question of the taxation of costs. 2 By statement of liquidated claim filed in the Manly Local Court and dated 2 October 1997, the claimant, Mr Lawrence, sued the opponent, Mr Nikolaidis, a solicitor who trades under the name of Nikolaidis & Co, for $38,000 for work done. The proceedings were defended. The learned Magistrate who heard the proceedings found for the defendant, for whom he entered judgment. He ordered that the claimant pay the opponent's costs, assessed on the basis of a two days' full hearing. 3 Mr Lawrence appealed to the Supreme Court against the Magistrate's decision. That appeal was dismissed with costs. 4 In the August-November 1999 period, Mr Nikolaidis, the opponent, submitted two bills of costs to the claimant, one in respect of each of the above proceedings. Each bill was referred for the assessment of Mr Michael Robinson, a costs assessor. 5 Mr Lawrence objected to nearly every item on both bills, including an objection that Mr Nikolaidis could not recover costs for representing himself. Mr Robinson determined all necessary questions, substantially reduced the bills and issued a certificate. He gave reasons for his findings. 6 Mr Lawrence lodged an application for a review in the Supreme Court, which was referred to a review panel, as provided in the Legal Profession Act. The panel upheld Mr Robinson's decisions. 7 Not to be deflected from his determination to prolong the proceedings apparently endlessly, Mr Lawrence then filed a summons seeking to set aside the decisions of both Mr Robinson and the review panel. This summons was heard by Master Harrison, who considered all the evidence, the history of the matter, and all legal questions which arose from the position of what costs were properly allowable to a solicitor who acted for himself. Master Harrison dismissed the summons with costs. She could discover no error of law. 8 This Court, perhaps unwisely, granted leave to Mr Lawrence to appeal, but limited the leave to the question whether a solicitor acting for himself is entitled to charge for all reasonable expenses or only those which required the exercise of professional legal expertise. In my view, the latter is the correct view. This is supported not only by general principle but also by the decision of the High Court in Cachia v Hanes (1994) 179 CLR 403. 9 Mr Zipser, learned counsel for the appellant, who said everything which could possibly be said on behalf of his client, was able to point to a heresy in the rule as enunciated by Mr Robinson, who said: "The law does not prevent him [ scil . a solicitor] from recovering his reasonable professional costs in acting for himself in litigation…. I consider that the proper approach to assessing costs in this case was to compensate the solicitor for time properly spent in preparation of his defence". 10 So put, the law is mis-stated. The principle has nothing to do with the broad question of reasonableness; it has everything to do with the narrower question of whether the item in respect of which costs are claimed can be accurately classified as one requiring the exercise of professional skill. 11 However, mercifully, Mr Robinson did not follow his own misdirection. Mr Zipser was unable to point to a single example of an item of costs allowed on a wrongful basis. 12 The appeal should be dismissed; and, once again, with costs. 13 BEAZLEY JA: I agree with Hodgson JA. 14 HODGSON JA: On 11 July 2002, Master Harrison in the Common Law Division dismissed an appeal by the appellant Wayne Lawrence under s.208L of the Legal Profession Act 1987 (the Act) against a decision of a costs assessor, and also dismissed an application for leave to appeal under s.208M of that Act. 15 The appellant applied for leave to appeal to this Court from that decision; and on 10 December 2002, leave to appeal was granted, confined to one matter, which I will identify later.

CIRCUMSTANCES 16 On 2 October 1997, the appellant commenced proceedings against the respondent Leon Nikolaidis (identified in the appeal papers by the name of the firm of which he is the sole principal) in Manly Local Court claiming $38,000.00 plus $24,293.45 interest for work alleged to have been done in relation to the building of the respondent's home between 1988 and 1992. 17 By his Amended Defence dated 7 November 1997, the respondent denied any contract, denied the doing of work, and also relied on s.14 of the Limitation Act and s.45 of the Builders Licensing Act. 18 The proceedings were heard over two days in the Manly Local Court, namely 13 October 1998 and 10 May 1999. The appellant was unrepresented, while the respondent acted as his own solicitor. The case was conducted on behalf of the respondent in court by a barrister, T.S. Hale. The appellant gave evidence in the case, and was cross-examined by Mr. Hale. At the end of the appellant's case, Mr. Hale submitted that the respondent had no case to answer, and this was upheld, on the basis of s.45 of the Builders Licensing Act. The Local Court made the following order: Claim struck out. Verdict for the defendant. Plaintiff to pay defendant's costs to be assessed pursuant to s.34(1)(c) on basis of two full days hearing. 19 The reference to s.34(1)(c) was a reference to a provision of the Local Courts (Civil Claims) Act 1970, s.34(1) of which provides as follows: 34(1) Subject to this Act and the rules, and subject to any other Act: (a) costs in or in relation to an action shall be in the discretion of a court, (b) a court has full power to determine by whom, to whom and to what extent costs are to be paid in or in relation to an action, and (c) a court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis. 20 In about June 1999, the appellant appealed to the Supreme Court from that order of the Local Court. On 6 September 1999, Sully J dismissed this appeal and ordered the appellant to pay the respondent's costs. 21 On 7 August 1999, the respondent served a Bill of Costs on the appellant in relation to the Local Court proceedings. The amount of costs totalled $29,575.30, the amount of disbursements (mainly Counsel's fees) totalled $12,480.40, and the total of the bill was $42,055.70. 22 On 5 November 1999, the respondent served a Bill of Costs on the appellant in relation to the proceedings in the Supreme Court. The costs in this bill totalled $4,533.50, the disbursements totalled $3,149.20, and the total of the bill was $7,682.70. 23 The bills identified items of work as having been carried out either by "partner" (since the respondent was the sole principal of his firm, this must mean the respondent himself, and time was charged at $325.00 per hour), "employed solicitor" (time charged at $200.00 per hour), "para-legal" (time charged at $125.00 per hour) and "senior secretary" (time charged at $84.00 per hour). 24 The appellant filed Notices of Objection to both bills, objecting to $37,700.00 in relation to the Local Court bill, and $5,772.75 in relation to the Supreme Court bill. The respondent responded by a letter dated 19 March 2001 and submissions dated 30 April 2001. 25 On 22 May 2001, the costs assessor issued a certificate as to determination of costs in relation to both proceedings, determining the total costs at $16,378.76, total disbursements at $10,730.80, giving an overall total of $27,409.56. His reasons included the following statements: The costs were assessed on the basis of the information supplied in the applicant's bills of costs and various submissions and correspondence which passed between the parties and myself. I was not assisted by the respondent's lengthy and often acrimonious criticism of the applicant's case, and I was unable to accept the objection consistently made that the applicant could recover no costs for his work because he was a solicitor litigant. The law does not prevent him from recovering his reasonable professional costs in acting for himself in litigation, see most recently Atlas Corporation Pty. Limited v F. G. Kalyk New South Wales Court of Appeal (unreported), 12 February 2001. I considered that the proper approach to assessing costs in this case was to compensate the solicitor for time properly spent in preparation of his defence both in the Court below and the appeal.

Particularly in the Local Court bill there were many excessive claims. I did not consider that the hourly rate claimed by the solicitor or his secretary were reasonable. In the case of the solicitor I allowed $215.67 per hour being two-thirds of the amount claimed. In the case of the secretary I allowed three-quarters of the amount claimed namely $63.00 per hour. I enclose herewith a Schedule of all items reduced in each bill, which will clarify the extent to which I allowed the objection to each item. 26 On 31 May 2001, the appellant lodged an application for review of this determination by the Review panel. On 12 December 2001, the Review panel affirmed the decision of the costs assessor, holding that, in relation to the Atlas v. Kalyk point that the costs assessor had correctly applied the law. 27 The appellant then filed a Summons in the Supreme Court, challenging the determination of the costs assessor and that of the Review panel. This was dealt with by the Master as an appeal under s.208L of the Act, and an application for leave to appeal under s.208M of the Act. In dealing with the appeal, the Master referred to Atlas v. Kalyk, and continued: The costs assessor refers to the defendant as a solicitor litigant and states that he acted for himself in litigation. The costs assessor found that the law does not prevent a solicitor litigant from recovering costs. The costs assessor did not err in law in proceeding on this basis. Much of the work was carried out by a Partner of MD Nikolaidis & Co and staff. The only work carried out by the defendant was the preparation statements and sundry matters incidental thereto including attending with Counsel and attending on the hearing. The defendant did not charge for time spent searching for records and locating documents in order to prepare the case and assemble evidence. The time charged by him was only that time in which he was actually engaged in locating witnesses and preparation of statements and evidence. He is entitled to do so, and accordingly this submission fails.

As noted earlier, the Master dismissed the appeal and refused leave to appeal.

GROUND OF APPEAL 28 Leave to appeal was granted, limited to a ground to the effect that the costs assessor had erred in law in allowing costs for all time reasonably spent by the respondent, rather than limiting them to costs in respect of professional work done by the respondent. The ground of appeal is expressed as follows in the Notice of Appeal: The respondent (the defendant in the court below) claimed costs for work he did as a solicitor litigant. The costs assessor stated that "the proper approach to assessing costs in this case was to compensate the solicitor for time properly spent in preparation of his defence both in the Court below and the appeal". This statement of the law is not correct. The correct principle is that the solicitor litigant can be compensated for time properly spent acting in the capacity of a solicitor in the preparation of his defence, but not for time otherwise spent on the litigation: see Guss v Veenhuizen [No 2] (1976) 136 CLR 47. In the present case, the respondent made some claims for work done in the capacity of a litigant, rather than in the capacity of a solicitor. A clear example is 5.5 hours charged for preparing his statement: see item 78 (or 63?) in itemised bill of costs dated 7 August 1999. The costs assessor allowed a significant part of the respondent's claim in respect of this work. However, the respondent was not acting in his capacity as a solicitor when he prepared his statement. On this basis: a) The costs assessor did not recognise this distinction, giving rise to a misunderstanding and misapplication of the law. b) Master Harrison did not recognise this distinction, giving rise to an error.

LEGISLATION 29 The legislation dealing with challenges to determinations by costs assessors is contained in subd.4A and 4B of Div.6 of Pt.11 of the Act. The most relevant sections are ss.208KI, 208L, 208M and 208NC, which are as follows: 208KI(1) Subdivision 4B applies in relation to a decision or determination of a panel under this Subdivision as if references in Subdivision 4B to a costs assessor were references to the panel. (2) Subject to subsection (1), the panel's determination of an application for review of a costs assessor's determination is binding on all parties to the assessment that is the subject of a review and no appeal or other review lies in respect of the determination.

208L(1) A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision. (2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor's decision: (a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or (b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application. (3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.

208M(1) A party to an application relating to a bill of costs may, in accordance with the rules of the Supreme Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor. (2) A party to an application relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor. (3) The Supreme Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal. (4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given. (5) After deciding the questions the subject of the appeal, the Supreme Court or court or tribunal may, unless it affirms the costs assessor's decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor.

208NC(1) If an appeal is made under section 208M against a determination of a costs assessor and the determination to which the appeal relates has not been reviewed by a panel in accordance with Subdivision 4A, the court or tribunal to which the appeal is made may refer the appeal to the Manager, Costs Assessment for a review by a panel under that Subdivision. (2) For the purposes of Subdivision 4A, the referral of an appeal by a court or tribunal under subsection (1) to the Manager, Costs Assessment is taken to be a duly made application for a review under that Subdivision. 30 It is not entirely clear whether the appeal brought under s.208L is properly regarded as an appeal against the determination of the costs assessor, or an appeal against the confirmation of that determination by the review panel; but I do not think this matters. The result is the same, and in relation to the question of law raised under s.208L and raised under the Notice of Appeal to this Court, the decision of the costs assessor was simply adopted by the review panel.

SUBMISSIONS 31 Mr. Zipser for the appellant submitted that costs recoverable by a solicitor who conducts his own case are limited to costs for professional legal work, and do not extend to costs in relation to time reasonably spent on the case in other ways, such as collating his or her own documents or other material relevant to the case, refreshing recollection in preparation for giving instructions or giving evidence, giving evidence, and superintending the conduct of the case: see London Scottish Benefit Society v. Chorley (1884) 13 QBD 872 at 875, 877; Buckland v. Watts [1970] 1 QB 27 at 35, 37-8; Guss v. Veenhuizen (1976) 136 CLR 34; Cachia v. Hanes (1994) 179 CLR 403 at 410, 411-12; Atlas at [9]. 32 Mr. Zipser submitted that the costs assessor said that the respondent was entitled to compensation for "time properly spent", this not being limited to time spent doing professional legal work. Mr. Zipser submitted that the way the assessor dealt with a number of items showed that he did not limit the costs recoverable to costs of professional legal work, as set out in the following written submissions: A) In item 63 of the bill of costs for the Local Court proceedings (BB 12) (item 78 in the costs assessor's work sheet (BBB87)) Mr Nikolaidis claimed 5.5 hours for time spent drawing his statement. It is evident that for some or most of this time Mr Nikolaidis was acting in the capacity of a witness and not acting in the capacity of a solicitor exercising professional legal skill. Similarly, in Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd [2002] NSWSC 838 Bryson J held that, on application of the High Court's decision in Cachia v Hanes, a litigant in person was not entitled to recompense for time spent in preparing an affidavit.

B Items 121 and 124 of the bill of costs for the Local Court proceedings (BB 15) (items 136 and 139 in the cost assessor's work sheet (BB 88)) indicate that Mr Nikolaidis had a two hour conference with his barrister the day before the hearing in the Local Court and a further two hour conference on the morning of the hearing. A question arises as to whether Mr Nikolaidis was exercising professional legal skill during these conferences or if he was merely attending as a witness or litigant in person providing information to the barrister. If the latter, he should not have been entitled to claim for this time. Mr Nikolaidis' file notes of the conference, if they exist, would allow a costs assessor to determine the issue.

C In item 125 of the bill of costs for the Local Court proceedings (BB 15) (item 140 in the cost assessor's work sheet (BB 88)) Mr Nikolaidis charged for 7.5 hours attending the hearing in the Local Court. On that day Mr Nikolaidis was represented by Tim Hale, an experienced barrister. If Mr Nikolaidis was "attending merely to observe or instruct", he should not be entitled to claim for this time as a profit cost: Cachia v Hanes (1991) 23 NSWLR 304 (CA) at 318 per Handley JA; and Kowal v Zoccoli (2002) 4 VR 399 (CA) at 403. Alternatively, if Mr Nikolaidis was attending as a witness, "a litigant who qualifies as a witness is entitled to the ordinary witness's fees" under the relevant court rules, but not to reimbursement or compensation beyond this amount: Cachia v Hanes (1994) 179 CLR 403 at 417. Again, Mr Nikolaidis' file notes of the court attendance, if they exist, would allow a costs assessor to determine this issue.

D) Similar issues arise in relation to items 153 to 156 of the bill of costs for the Local Court proceedings (BB 17) (items 169 to 172 in the cost assessor's work sheet (BB 88)). 33 In the case of all these items, although the costs assessor reduced the hourly rate, he did not make any reduction in respect of the time claimed. 34 Mr. Chippindall for the respondent submitted that all litigants in person are entitled to out-of-pocket expenses, and out-of-pocket expenses can extend to loss of earnings due to time properly spent in dealing with the legal proceedings: Petrunic v Barnes [1989] VR 927; Secretary, Department of Foreign Affairs v. Boswell (1992) 39 FCR 288. In any event, Mr. Chippindall submitted, the costs assessor did limit the costs to "reasonable professional costs", as shown by the sentence preceding the sentence relied on by the appellant. Mr. Chippindall referred to Brott v. Almatrah [1998] 2 VR 83, and also to the following passage from Atlas at [9], referring to the High Court decision in Cachia: It is nevertheless clear that the majority did not overrule Guss v Veenhuizen [No 2] and their statements about the position in the case of solicitors acting for themselves in litigation were only dicta. It might be said, with respect, that although solicitors representing themselves in litigation have no need of any indemnity against professional costs paid or payable to another practitioner, there is still scope for the indemnity principle. Such solicitors will have spent time and trouble representing themselves and, to that extent, they will have lost the opportunity of using that time doing professional work for other clients and being remunerated accordingly. The indemnity in the case of solicitor litigants is, therefore, against the opportunity cost rather than the direct cost of their professional time spent on their own case. 35 Furthermore, Mr. Chippindall submitted, the respondent was in any event entitled to witnesses' expenses: see Cachia at 417; and cf. Walton v. McBride (1995) 36 NSWLR 440 at 452-3; Kowal v. Zoccoli [2002] 4 VR 399. Any time that the respondent may not have been doing professional work, he did spend as a witness; and accordingly he was entitled to reasonable fees for this.

DECISION 36 It is convenient first to consider what costs are recoverable by a self-represented litigant who is not a solicitor. 37 First, there are out-of-pocket expenses actually and reasonably incurred. It was held in Boswell that this extended to earnings actually lost because of time reasonably spent on the case. However, in my opinion this decision must be considered as disapproved by the High Court in Cachia. In the judgment of the five judges of the majority in that case, after reference to legislation and a rule applying in England, there appears the following (179 CLR at 416-7): We should add that the English legislation and rule represent a straightforward approach to the problem, 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. Of course, a litigant who qualifies as a witness is entitled to the ordinary witness's fees. 38 Footnote (45) referred to in that passage, is as follows: (45) See Kerridge v. Foley (unreported; Supreme Court of N.S.W.; 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. 39 Then, there are "ordinary witnesses' fees". There is real difficulty here as to what this includes. Undoubtedly, it includes a reasonable fee for time actually spent giving evidence in court. However, it is not clear what if anything may be included by reason of preparation, and what if anything may be included in relation to attendance at court in order to deal with matters of evidence given by witnesses (particularly witnesses for the other side) as they arise. 40 There was some discussion of this in Chanter v. Blackwood (No.3) (1904) 1 CLR 456. In that case, a petitioner sought a declaration that the respondent in that case was not duly elected; and obtained a declaration to that effect. The petitioner attended at the trial of the petition in the High Court, and also at the re-count before the Deputy Registrar. However, he did not give evidence. On taxation, the Deputy Registrar allowed expenses of these attendances, stating that he did not hold that the petitioner was a witness, but that he was entitled to be present and should therefore be allowed his expenses of so doing. In giving judgment on a summons to review the taxation on those items, Griffith CJ said this: I reserved judgment on the objection that the travelling expenses of the petitioner to attend the trial of the petition ought not to be allowed. The case of Howes v. Barber (18 Q.B., 588 ; 21 L.J. Q.B., 254) was cited in support the of objection. In that case, Lord Campbell C.J., said:-"The simple fact that parties are examined as witnesses must by no means be considered sufficient to establish a claim for their expenses as witnesses, and if it appear that their attendance was unnecessary, or that they attended to superintend the conduct of the cause, the claim ought to be rejected." On the other hand, the expenses of a person subpoenaed as a witness may be allowed although he is not actually called, if his attendance was reasonably necessary having regard to the probable course of the case. In the case of a party the issue of a subpoena would be an idle form. In my opinion, therefore, the expenses of a party who may reasonably be expected to be required as a witness should be allowed without a subpoena being issued. No authority was cited to me in which such expenses have been allowed to a suitor conducting his case in person. The case of Anthony v. Walshe, (1888) 22 L.R. Ir., 619, is against such an allowance. There are, in my opinion, some cases of such a character that the party ought prima facie to be regarded as a probable witness. Such, I think, are cases in which the status or character of the party is involved, and in which it is likely that adverse evidence may be given at the trial as to which his evidence might be beneficial to him. As an instance I may mention the case of a wife made respondent in a divorce suit. I think that the same rule should prima facie be applied in the case of an election petition in favour of a party claiming or defending the seat for himself, although the nature of the issues raised might be such as to exclude the application of the rule.

In the present case I think that the attendance of the petitioner as a witness was reasonably necessary. In fact, although he was not called as a witness, information was afforded by him during the progress of the trial, which, if the facts supplied by him through his counsel to the Court and accepted by the other side had not been so ascertained, would have had to be proved by witnesses, and an adjournment of the trial might have become necessary.

I think that the recount before the Deputy-Registrar should be regarded as part of the trial. The Deputy-Registrar informs me that the sums allowed are for actual travelling expenses only. 41 There was a substantial discussion of this question by Samuels JA in Cachia v. Isaacs (Court of Appeal, unreported, 23/3/89), in which Samuels JA first referred to Pt.51 r.23(2) of the Supreme Court Rules, which is as follows: On a taxation on a party and party basis there should be allowed 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. 42 Samuels JA then said this: It is clear in my opinion that R23(2) has never been regarded as authorising an allowance for costs in the sense of remuneration for the exercise of a professional skill which, of course, the appellant does not possess. It was submitted in the alternative however that the rule supported the appellant's claim simply on the ground that it was necessary for him to prepare and present his case or allow the proceeding to go by default and thus abandon the defence of his rights. But in preparation and presentation a litigant in person is doing precisely what the lawyer would be doing if the party were represented. There is no middle ground. The litigant cannot be present in court to supervise her own conduct or instruct herself. In any event, a legally represented party is not entitled to an allowance for being in court to supervise the conduct of the case: Russo v Russo (1953) VLR 57 at 67 and Chanter v Blackwood (1904) 1 CLR 456 at 458-9. It is and always has been the practice of the taxing officers to disallow any such claim: Saddington Taxation of Costs (1919) at 48. But such a party is entitled to witness's expenses : Russo ibid, and the cases cited.

There are three cases, however, which find in R23(2) or its equivalent support for a somewhat equivocal allowance to legally represented parties. The first is Australian Blue Metal Ltd v Hughes and ors (1970) 2 NSWR 119. There, three of the four defendants in the suit included in their bill items comprising costs and disbursements relating to their presence in court during the plaintiffs case. That item was disallowed but, on review, Helsham J (as he then was) restored it. He did so on the ground that the three defendants "were not mere witnesses" but parties to the suit, and in the circumstances of that case, which was of great complication apparently, it could reasonably be contemplated "that each of them might be required to play an integral part in the day to day conduct of the defence, and I do not think that any prudent legal adviser would contemplate proceeding at the hearing without their presence. To this extent their presence was, in my view, most necessary and proper for the maintaining or defending of their own rights." Further, without seeking to lay down any general rule, his Honour expressed surprise if a "real defendant" (other than an underwriter, I presume) brought into court at the suit of a plaintiff was not "if he wins ordinarily entitled upon taxation to reasonable expenses incurred by his attendance throughout the whole duration of the hearing.... " In fact, as I have indicated, that was not then and is not now the practice, and his Honour was not referred to any of the cases on the subject. However, he decided that in the case before him the three defendants "were so integrally involved with the issues that had emerged from the pleadings that they were entitled to be at court at all times whether or not they should be required as witnesses."

The case was applied by Street J in Kerridge, which I have already briefly mentioned, in a judgment which apparently had the approbation of the other judges of the Equity Division. In that case the successful male defendant, Mr Foley, had, at the request of his counsel or solicitors, carried out an enormous amount of investigation in the collection of evidence, searched a great many records, had prepared extracts and analyses of many of the documents and had available accordingly a wealth of information referable to the due conduct of the defence. For all of this Mr Foley, in his bill of costs, sought to obtain an allowance for the expenditure of time and money incurred, and also for attending at the hearing and at a conference prior to it. These items the taxing officer disallowed. But Street J expressed the view that the practice of disallowing items such as this was unsound and ought not to be further recognised, considering that it was contrary to the large discretion conferred by the then R23. However, the learned judge did not think it right to grant Mr Foley remuneration for the use of his time, and refused him anything for work done in his own time, determining only to award an indemnity against any loss of wages or salary related to the time spent in preparing material or attending the hearing.

Recently, in Petrunic and anor v Barnes (Supreme Court of Victoria, 15 December 1988) Murphy J applied Helsham J's decision in Hughes and restored a claim made on taxation by the successful defendant, a gynaecologist sued for professional negligence, for the costs of attending court for three and a half days, which was the whole duration of the hearing, at which he gave evidence. Murphy J was of the opinion that in such a case the taxing officer should consider "with an open mind" whether the attendance of the party was necessary or proper within the terms of the Victorian rule which contains the same provision as R23(2).

It appears that the current practice in New South Wales does not give effect to the views of Helsham J and Street J. For my own part I think that these decisions were correct in their result but did not sufficiently formulate their grounds. It must be recognised that in certain cases, of which Hughes was evidently one and Petrunic another, prudence entails the presence of the client in court as an insurance against shifts and new assignments in the adversary's evidence. In such events immediate instructions from the client may be imperative; and the client is really performing the role of witness, whether called or not. There are other cases in which any such evidentiary flux is improbable. In such cases as Kerridge R23(2) authorises some allowance to the client during the time that actual exigency or prudent contemplation required his or her presence in court. That attendance should be regarded as that of a potential witness and not "merely to observe or to instruct": see Russo at 67. I interpolate that Helsham J's remarks that the defendants were not mere witnesses but parties misplaced the procedural emphasis. The attendance should be paid at the rates laid down for witnesses in Table 3 of Sch G. It must be remembered that R23(2) has as its object the attainment of justice or the enforcing or defending of parties' rights. The mere presence in court of a legally represented party does not conduce to either end; and, clearly, in each of the three Australian cases I have mentioned the allowance was firmly linked to the necessity of the parties' presence in court. By way of further example, the attendance in court of a party to an appeal would not usually be necessary to the adequate conduct of the proceedings.

Hence taxing officers should pay more flexible regard to the terms of R23(2) and must be prepared to allow claims (at witness's rates) where, in cases such as Hughes, or Petrunic, the presence of a party in court (other than during time actually spent in the witness box) satisfies the prescription in the rule. I consider also that the practice should be enlarged further. The one occasion upon which the presence of the client is indispensable is when he or she first gives the solicitor instructions for the claim or defence. Attendance at such a conference (and at a conference with counsel if the taxing officer thinks it necessary or proper) should also be allowed at witness's rates.

In addition, it may be that, in circumstances such as those which evidently obtained in Kerridge, a party is for some reason better able than his solicitors, or agents available to them, to conduct investigations or collect evidence. If so, I see no reason why an allowance should not be made in respect of time spent in these activities. But it should not be calculated on the basis of time spent, or with regard to any distinction between the party's expenditure of paid time or unpaid leisure time. To the extent that the exercise is designed to gather evidence it should be compensated as if it were for the purpose of qualifying a witness to give skilled evidence : see Table 3, item 53. I would have thought that such cases would be rare.

I conclude therefore that R23(2) does not authorise any allowance to a legally represented party for attendance in court other than as a witness or in the particular circumstances I have postulated. Hence no analogy exists by which such an allowance, if paid to a represented party, should be paid to a party in person. There is no case of which I am aware that distinctly approves the right of such a party to witness's expenses, and Chanter at 459, and Anthony are against it. But the practice is to grant the allowance.

The position therefore remains that, as Guss establishes, a litigant in person is not entitled to any allowance for preparation or attendance in court, save as a witness. It would, I think, be within the taxing officer's discretion to allow a claim such as that successfully made in Kerridge, if the circumstances justified it. As it turns out the taxing officer here has, in allowing the appellant two days loss of income for each proceeding, been over generous. These were amounts to which the appellant was not entitled. The basis for the exclusionary rule, as Bowen LJ pointed out in Chorley, is the difficulty of assessing the value of legal services performed by a lay person. The costs rules lay down precise amounts or ranges of amounts to be charged by solicitors and counsel for particular and specifically identified items of work. These can have no application to the appellant. 43 I would interpolate here that, in my opinion, the view of Samuels JA that costs could be recovered in relation to the giving of first instructions to a legal adviser seems inconsistent with the passage from Cachia v. Hanes, referred to above. 44 There was some further discussion of this matter in Walton v. McBride. At 452-3, Kirby P said this: It will be recalled that Ms Walton ultimately agreed that Dr McBride's costs of attending the Tribunal on those days where he was a witness, should be covered by the terms of the order made as part of his "costs". But she persisted in her objection, raised by the cross-appeal, that Dr McBride's costs could not include the costs of sitting in the Tribunal during the long hearing and being available to hear and observe witnesses, give instructions to his counsel and listen to the accusations made against him.

Uninstructed by binding authority, I would accept the force of Dr McBride's submission that his costs of attending the Tribunal throughout its long hearing in a matter so vitally touching his practice, pocket and reputation was within the expression "costs", or that it was at least open to the Tribunal to so decide.

There is some early authority which supported the view that a litigant may recover the reasonable and necessary costs of attendance at court throughout a hearing in which he is a party see: eg, Australian Blue Metal Ltd v Hughes [1970] 2 NSWR 119 at 123; Kerridge v Foley, (Street J, 19 August 1970, unreported), Petrunic v Barnes [1989] VR 927 at 930 and Secretary Department of Foreign Affairs and Trade v Boswell (1992) 39 FCR 288 at 292.

In Petrunic, Murphy J, responding to an objection such as Ms Walton, has raised in this cross-appeal, said (at 930), in relation to the Supreme Court of Victoria: "To approach the matter with a pre-conception that a party is not entitled to claim expenses save for the time that he or she spends as a witness ready to give and giving evidence is not correct.

More often than not, in my experience, it is both necessary and proper that a party be present throughout the hearing to instruct counsel or legal representative as to, and to deal with, matters that inevitably crop up not only in his or her own case but also in the opponent's case, in giving of evidence by the opponent and his witnesses." However, in this Court, in Cachia v Isaacs (Court of Appeal, 23 March 1989, unreported), Samuels JA (at 21 of his reasons), made it clear that: "The current practice in New South Wales does not give effect to the views of Helsham J [in Australian Blue Metal] and Street J [in Kerridge]." Samuels JA relied upon what he took to be a longstanding practice that a party may not recover costs for "attending merely to observe or instruct": cf Russo v Russo [1953] VLR 57 at 67; Chanter v Blackwood [No 3] (1904) 1 CLR 456 at 459.

Although my own view about the breadth of the word "costs" where used in its generality have been expressed in Cachia v Hanes and Cachia v Isaacs, th ose views were in dissent. They must now be taken to have been over-ruled by Cachi a v Hanes in the High Court. Kerridge, Petrunic and other cases are footnoted to the majority judgment in that last-mentioned case (at 417). It is clear that the majority in the High Court disapproved of them. Their Honours observed (at 417): "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. Of course, a litigant who qualifies as a witness is entitled to the ordinary witness's fees."

It would be completely unacceptable to afford a litigant in person no costs (save as a witness) of attending at court whilst permitting a litigant to recover who could afford, or had, legal representation to do so. What applies to one must apply to the other unless some differing principle, grounded in the objection of professional lawyers to litigants in person, is to be expounded. It is clear in the passage just cited that the High Court has rejected the notion of litigants recovering costs of attending and instructing. Their costs are to be limited, by the principles in Cachia v Hanes, solely to any witnesses fees to which they are otherwise entitled. This is a stern rule. It is not one apparently required by the breadth of the legislative language (costs). It is one imposed upon that language by judicial presumption upheld by this country's highest Court. I am obliged to give effect to that opinion, whatever I may think of it. It completely negatives the order made by the Tribunal (in fairness before Cachia v Hanes was decided in the High Court) to the effect that Ms Walton was obliged to pay the costs of Dr McBride's attending during the hearing of the obstetrics complaint.

The cross-appeal must, to that extent, also be allowed. 45 At 461, Powell JA said this: 1. for the most part, "costs" were limited to professional costs and out of pocket expenses in fact incurred by a litigant, together with an allowance - in the nature of a witness fee - in respect of the time involved in the litigant giving evidence in - but not in respect of the time involving in merely attending to observe or instruct at - the proceedings: see, eg. Cachia v. Isaacs (No.2) (Court of Appeal, 23 March 1989, unreported); Cachia v. Hanes (1991) 23 NSWLR 304; (1994) 179 CLR 403 and the cases there cited. 46 In Maronis Holdings Ltd. v. Nippon Credit Australia Ltd. [2002] NSWSC 838, Bryson J considered the claim of a litigant in person for his own time spent in preparation, including preparation of his own affidavits where the Court had directed evidence in chief to be on affidavit. His Honour said this: 16 5D has at various points claimed allowances for the value of his time spent reading the plaintiff's materials - 76 hours, attending court on 44 days of the hearing (which lasted 57 days, but he did not attend on every day), and made a calculation of the hours spent at court at 240 hours and travelling time at 44 hours. He also claimed for time spent preparing his own affidavits. The written submissions show that in the course of negotiation Ps were prepared to make an allowance to 5D in respect to this item, although considerably less than 5D's claim. In my view this claim cannot be allowed upon the literal terms in which the opinion of the High Court was expressed, which, in the passage I have quoted, refers to "the ordinary witnesses' fees" and further shows that a litigant is not to be recompensed "... for time spent in the preparation or conduct of his case ...".

17 For some years it has been usual practice in the Equity Division to direct that each party file affidavits showing the case in chief; this is practically universal in proceedings commenced by Summons, and very usual in any proceedings commenced by Statement of Claim which involve any complexity. There was such a direction in the present case, and this was appropriate because of the number of parties and the complexities of the issues. The Court's attitude now about what is required for proper case management, fair preparation and procedural justice requires that evidence in chief be put on affidavit and notified in advance in all but the simplest cases.

18 In Cachia v. Hanes there is not to my reading any reference in the judgments or elsewhere in the report to time spent by the defendant in preparing his own affidavit; special leave was confined to the disallowance of the defendant's claim 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. - see page 404. The account given of the disputed items in the judgment of Toohey and Gaudron JJ at 418 does not expressly refer to preparing an affidavit.

19 5D's claim for his time spent preparing his own affidavit requires consideration of whether the claim falls within the meaning of references to costs in s.76 as established by a long course of interpretation by courts of similar provisions and now by the decision in Cachia v. Hanes. The claim falls literally within the language used by the High Court at p417 on the excluding side - "time spent in the preparation or conduct of his case." The claim would fall within the High Court's language on the including side - "the ordinary witness's fees" only if the concept of the ordinary witness's fees is expanded to have regard to the altered practice of the court by which litigants are now directed by the court to put their evidence on affidavit, and by so doing they carry out part of the function which in earlier times they carried out by attending as witnesses.

20 Several observations should be made. One is that, in the ordinary and natural meaning of the word "costs", the time, trouble and loss of opportunity to attend to something else, it may be to some profitable activity, are not costs. They are costs in specialised usage: "opportunity costs". Cachia v. Hanes shows that opportunity costs are not part of the parties' costs within the meaning which has been applied for some centuries to legislation empowering courts to order payment of costs. Another matter that should be observed is that if it is correct that 5D should receive witness's fees for time spent in preparing his own affidavit, the principle involved would relate not only to litigants in person, but also to all litigants who are required by rules of court or directions to give their time to preparing their own affidavits; whether or not they have legal representation. On the other hand it would not extend to time spent by litigants in person, or by other litigants, in attending to obtain affidavits from any other witnesses than themselves personally, and where a litigant was a corporation, it would have no operation at all.

21 My view, conforming to the majority judgment in Cachia v. Hanes, is that 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; it is not costs within s.76 and I should not allow it. I see this as another instance in which the limit on the costs power established in Cachia v. Hanes has a very unfortunate affect in its impact on 5D; I commented on this at para.20 of [2001] NSWSC 854. 5D also made large claims for very long periods of time spent by him in other attendances; reading affidavits of other witnesses, and attendances in court for the evidence of other witnesses. In my opinion these too are not allowable.

22 5D claims $12,845 for attendance at court to give evidence. He makes a further claim for travel time. $12,845, applied to six days attendance as a witness, implies $2141 per day. 5D is a business manager with professional qualifications and a record of positions of high responsibility in large businesses with demanding management tasks over very large resources and funds. I have to assess an appropriate ordinary witness fee for a professional person with such high qualifications based on what it might be expected that such a person would require to be paid to retain him to give evidence. Ps contend for payment of $235 per hour for six hours for each day, such day including travelling time, which implies $1,410 per day and a total of $8,460. My assessment is that the appropriate witness fee is at the rate of $1,750 per day, to include attendance for the whole day, travelling time and all other claims for attendance in the capacity of a witness. In my view I should allow $10,500. 47 Finally, in Kowal v. Zoccoli [2002] 4 VR 399, the Victorian Court of Appeal was dealing with taxation of costs awarded to a defendant in a professional negligence case in the County Court. The defendant doctor had been represented, but he attended in court for the five days of the trial. The taxing registrar allowed a claim for costs in relation to five days' attendance at something over $5,000.00 per day, being fees the doctor claimed to have lost. On a review of this, a judge varied this to $217.00 per day, according to the scale of witnesses in the County Court. The doctor sought leave to appeal from that decision. After discussing inter alia Cachia v. Hanes and McBride, Phillips JA at 403-4 said this: 12. That is enough to dispose of the present case, for it establishes that the Taxing Registrar in the County Court erred in allowing what was, in effect, compensation for loss of income. The County Court judge, on review, allowed the doctor the ordinary witness allowance: and so much is authorised by the High Court in Cachia v. Hanes ; for the majority said "Of course a litigant who qualifies as a witness is entitled to the ordinary witness's fees." There is no cross-appeal against the amount allowed by the County Court judge in this instance and so no point is made of the allowance by the judge for the five days for which the doctor claimed, notwithstanding that he did not give evidence.

13. There is, however, one other complaint now made by the would-be appellant about the judge's decision and that is the subject of a ground of appeal added by leave this morning. The new ground reads: "7. Alternatively, his Honour erred in failing to allow Dr Kowal witness expenses for 5 days at the scale item for witnesses giving evidence in an expert or professional capacity, namely $1,413 per day." 14. It will be recalled that in setting aside the decision of the Taxing Registrar the judge allowed in lieu an amount of $217 per day for the five days of the doctor's attendance at court. That was allowed as the maximum permitted under the heading "Witnesses expenses", a section appearing towards the conclusion of Appendix A in Chapter I of the County Court Rules. His Honour allowed $217 by reference to the second paragraph of that section, rejecting as inappropriate the first paragraph commencing "witnesses giving evidence ....." and under which a maximum is permitted of $1,413 per day. The complaint made in the new ground 7 is that the judge should have allowed the greater sum instead of the lesser.

15. His Honour's view was that under the first paragraph allowance could be made only for the days spent by a witness while in court actually giving evidence, and in that regard his Honour distinguished the position under the differently framed equivalent in this Court, which appears in Appendix B to Chapter I. Now, whether his Honour was right or not, it is a matter which might be thought peculiarly within the province of the County Court itself, involving as it does the proper interpretation and application of that court's own scale of costs. Ground 7 has been raised very late in the day: as I have said, ground 7 was introduced by amendment only this morning. The doctor was granted by the judge an allowance per day for five days, notwithstanding that he was not called upon to give evidence; and while the fact that his attendance was necessary and proper for the attainment of justice was not put in issue on the appeal now under consideration, it might have been otherwise had the allowance made been at the higher rate. I do not know, and I do not mean to speculate. But in all of the circumstances, I would not grant leave to appeal by reference to the added ground.

16. Otherwise, the proposed appeal seems to me to have no merit and accordingly, for the reasons I have given, I would refuse leave to appeal altogether.

Winneke P and Ormiston JA agreed. 48 I think it follows from these cases that a litigant, whether represented or not, may be entitled to some witnesses' expenses, in addition to expenses for time actually spent giving evidence in court. 49 Where attendance at court is reasonably necessary to deal with unforeseeable evidence as it arises, the expense of that attendance may well be allowed. However, it seems clear that such witnesses' expenses will not be allowed as a matter of course. Samuels JA in Cachia v. Isaacs referred to cases where prudence entailed attendance as "insurance against shifts and new assignments in the adversary's evidence". In Walton v. McBride, Dr. McBride was allowed only the costs of his attendance on those days when he was a witness, and was allowed no costs for those days when he was "available to hear and observe witnesses, give instructions to his Counsel and listen to the accusations made against him". In most cases, it may be considered prudent for a party who is familiar with the facts of the case and who is represented by a lawyer to attend at a hearing and be available to comment to the lawyer on the evidence as it is given; but I think that McBride makes it clear that this is not enough to justify entitlement to witnesses' expenses. There must be at least a reasonable expectation of something new arising, which would require prompt instructions. 50 In relation to represented litigants, expenses may be allowed for a conference with a solicitor and/or barrister, in so far as this is necessary in order to prepare for giving oral evidence or to prepare an affidavit. In the case of a solicitor litigant, the same expenses may be allowed in connection with such a conference had with a barrister. 51 However, I do not think expenses would be allowed in relation to such matters as collation of documents or other material in preparation for giving instructions or giving evidence, time spent in refreshing recollection or making notes with a view to giving evidence or giving instructions, and matters of like nature. 52 Where the self-represented litigant is a solicitor, it is clear that the solicitor can recover the reasonable costs of doing what is truly professional work in relation to the case. However, just as a represented litigant cannot recover expenses incurred in attending to give instructions as a party (as opposed to a witness) or to observe and/or superintend the conduct of the case, neither can a self-represented solicitor recover expenses in respect of those matters. 53 When one considers the application of these principles to the present case, there is to my mind a real question in relation to the items specifically referred to by Mr. Zipser. There were the five and a half hours spent in preparing the respondent's statement, two two-hour long conferences associated with each of the two days of hearing, and the full day's attendance at court (seven and a half hours) on each of those days. 54 The respondent did provide material relevant to these items. First, there were general comments in the letter dated 19 March 2001: In relation to paragraph 4 on page 2, the codes are standard codes used by this firm for very many years. Much of the work was carried out by another Partner of this firm and staff. The only work that was carried out by the writer was the preparation Statements which only he could effectively do and sundry matters incidental thereto including attending with Counsel and attending on the Hearing.

The time charged by the writer is only that time he was actually engaged in locating witnesses and preparation of Statements and evidence. There has been an enormous volume of time spent that was not being charged for nor reflected in any bill which goes directly to the searching for records and locating documents in order to prepare the case and assemble the evidence.

(Since the respondent is the only principal of his firm, the reference to "another Partner" is puzzling; but it is not necessary to pursue this.) 55 In relation to the five and a half hours spent on the statement, he wrote in his answer to the appellant's submissions the following: Even in Cachia v. Hanes, a solicitor was confirmed to be the exception to the rule that a litigant in person could not recover "costs" in the sense of preparation work requiring the exercise of legal skill, and this work recoverable even under the "dicta" of that Judgment. See also the response to general objection as to decision of Court of Appeal in Atlas v. Kalyk, and which quite clearly holds these costs are recoverable by the solicitor 56 In relation to the first two two-hour conferences, and the first day's hearing, he wrote the following: The conference was required to prepare for the hearing and go through the evidence, including perusal of the Plaintiff's witness statements (dated 28/9/98 and undated) for which no other claim is made in the bill. The number of documents required to meet the plaintiff's claim (and answer the plaintiff's Notice to Produce) alone constituted a voluminous amount of material. As set out in the response to general objections, the matter was far from straightforward, running for 2 days hearing, with a large amount of cross examination required by the defendant's counsel as is evidenced by the transcript. The conference was required for counsel to be in a position to effectively appear at the hearing on the following day.

In relation to the submission as to the case law as to a solicitor acting for himself, see response to general submissions and decision in Atlas v. Kalyk referred to therein.

The work is required to be done and is not otherwise charged for.

There have only been 2 conferences with counsel so far, and prior to counsel being briefed, the solicitor ran the matter himself. File perusal is reasonably required prior to attending the hearing to organise the documents required for the hearing so as to effectively be in a position to instruct counsel. As to the comments relating to the general objection, see response to general objections.

A conference at court with counsel prior to the matter proceeding is entirely reasonable. The time spent was reasonably required to prepare for the hearing, and is reasonably claimed.

Walton v. McBride is a 1995 decision of the Court of Appeal relating to Dr McBride, a lay litigant where the majority of the Court applied the Cachia v. Hanes decision in disallowing Dr McBride "costs" in relation to legal work. That decision specifically allowed "witness expenses" to be payable to Dr McBride as opposed to "costs" for legal work on the basis he was a lay litigant. However, this matter involves attendances by a solicitor/litigant which is the exception to the rule relating to lay litigants which was applied in that case, and pursuant to the Atlas v. Kalyk decision entitles the solicitor to recover these costs.

(It is noted that even if there was no exception to the rule in respect of solicitor litigants, that the solicitor would be able to recover witness expenses, as witness expenses are not precluded either by the Cachia v. Hanes or the Walton v. McBride decisions. However, where the litigant is a solicitor, he comes within the exception to the rule, so that this becomes irrelevant).

The solicitor was attending to instruct counsel for the hearing and the costs are claimable pursuant to the Atlas v. Kalyk decision

He relied on similar submissions in relation to the other two conferences and the second day's hearing. 57 The costs assessor decided that the time involved in all these items was properly spent in preparation of the respondent's defence; and that is a finding that cannot be challenged. Time properly spent, however, could include time properly spent in professional work, or time properly spent as a witness, or time properly spent doing such things as parties to litigation, whether professional or otherwise, do in support of their case. 58 Unrepresented litigants who are not solicitors are extremely limited in the costs they can recover, and the exception favouring solicitors is regarded as anomalous. In those circumstances, I think the exception should be applied carefully rather than loosely. Certainly, I do not think solicitor/litigants should be allowed witness' expenses on a more accommodating basis than other litigants. Thus, if a solicitor/litigant is seeking witness' expenses additional to those occasioned by actually giving evidence or attendance at court for that purpose, and (where a barrister is instructed) a conference with the barrister for that purpose, it is necessary to provide material to show that this is justified, consistently with the approach supported by Cachia v. Isaacs, McBride and Maronis, as discussed above. There was no such material in this case, and thus no material justifying witness' expenses beyond those for such conference or conferences with Mr. Hale as were truly necessary preparation for giving evidence. 59 The question then is, did the costs assessor decide that the remainder of these items comprised professional work, and if so, was such a conclusion reasonably open? That conclusion would require a finding that none of the five and a half hours claimed for the preparation of the statement was for the non-professional work of collating documents, refreshing recollection, making notes, etc., and that the whole of it was for the professional work of putting the material into a satisfactory form so as to be suitable for service or as a basis for admissible oral evidence. It would require a finding that, apart from the time spent preparing for giving evidence, none of the eight hours of conference time which I have mentioned was for the non-professional purpose of giving non-expert instructions, and that the whole of it was for the exercise of professional expertise in preparation of the case. And it would require a finding that the case was such as to require attendance at court throughout both days of both a senior junior barrister and a "partner level" solicitor. 60 To my mind, those findings would be unreasonable on the material provided; and accordingly, taking into account the costs assessor's wrong statement of the test to be applied, I am satisfied that the costs assessor did apply the wrong test that he stated. And accordingly, I am satisfied that the Master was in error in holding that the correct test was applied. 61 In a case such as this, in my opinion a solicitor/litigant should identify to the costs assessor the basis on which he or she is claiming for time spent: that is, whether it is for as professional work (and if it is a simple case, being conducted by a barrister, why professional assistance, particularly assistance by a solicitor at "partner level", was required); or as a witness (and if the claim is for more than time spent actually giving evidence or in conference with a barrister to prepare an affidavit or prepare to give oral evidence, why that additional time was necessary). This was not done here. 62 The question then is, what should be done. Section 208L(2) of the Act empowered the Master either to make such determination as in her opinion should have been made by the costs assessor or to remit the matter to the costs assessor; and this Court has the same powers. Although the material is deficient, it seems highly unlikely that any review of the costs awarded would result in a reduction of more than a few thousand dollars; and it seems highly likely that the trouble and expense, and potential further costs, involved in a further assessment of the costs would be out of proportion to this amount. On the other hand, I think the chance of a different result is sufficient to justify the appeal being upheld, and some order made. 63 In my view, the following orders should be made: 1. Appeal allowed. 2. The respondent to pay the appellant's costs of the appeal and to have a Suitors' Fund certificate if otherwise entitled. 3. The amount of the assessment of costs be reduced by $5,000.00, to $22,409.56 as at 22 May 2001.

The determination made by the third order is the best I can make on the limited material I have, and on that basis amounts to the determination which in my opinion should have been made by the costs assessor. I have made no provision for the costs of the application for leave, in which the appellant was unrepresented; and I would not order that the costs previously ordered against the appellant be on an indemnity basis. *****

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