Plaintiff v Defendant

AGENCY - Discussion of relevant principles - Whether self-represented litigant can act as own agent in performing paralegal work - A person cannot act as own agent.

1. The plaintiff, Mr Andre McKechnie, is a prisoner held in custody at Port Phillip Prison in Truganina, Victoria. As a self-represented litigant, he asks the Court to make a declaration essentially permitting him to act as his own agent in performing work relating to litigation he has brought against the defendant, Mr Peter Ma'a (in his capacity as the Governor of Port Phillip Prison). For the reasons set out below, the declaration sought is misconceived and will be refused.

1. By way of an originating motion for judicial review filed on 28 March 2024, the plaintiff seeks to impugn a purported decision made by the defendant to return a letter sent to the plaintiff by Victoria Legal Aid on or about 23 August 2024 ('substantive proceeding'). In particular, the plaintiff seeks declaratory relief, including a declaration that, by returning the relevant letter, the defendant failed to give proper consideration to the plaintiff's right to privacy under s 13(a) of Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter') and his right to freedom of expression as defined in ss 15(2)(b)-(c) of the Charter.
2. On 7 May 2024, the plaintiff filed a summons by which he seeks a declaration in the following terms ('declaration'):

the plaintiff as the sole proprietor of a business may act as an agent in performing the work necessary or proper for the attainment of justice or for enforcing or defending the rights of the plaintiff,

where the term "agent" has precisely the same meaning as that it has in holding 4, Cachia v Hanes (1991) 23 NSWLR 304 which states:

A litigant in person is entitled to employ agent[s] and recover the reasonable out of pocket expenses of doing so

('agency application').[1]

1. Alternatively, the plaintiff seeks an adjournment to allow himself sufficient time to seek and secure the services of such an agent.
2. The summons was returnable for directions before McCann JR on 5 June 2024, at which time, the Judicial Registrar made various timetabling orders for the filing of affidavits and submissions and listed the summons for hearing before me on 4 September 2024 ('June orders').
3. Although the plaintiff is self-represented, an appearance form was filed on the day of the hearing on behalf of the plaintiff by Mr J.A.G. Ricardo Balancy, a registered legal practitioner. Whilst it was initially suggested by Mr Balancy that he appeared in a pro bono capacity, it was later determined, as a result of an exchange between the plaintiff, Mr Balancy and the Court, that Mr Balancy was in fact appearing in the capacity of a McKenzie friend to provide assistance and advice to the plaintiff in making his agency application. The Court permitted this arrangement. The plaintiff and Mr Balancy also indicated that, depending on the outcome of the hearing, the plaintiff may formally retain Mr Balancy to act for him, perhaps on a pro bono basis.
4. For the purpose of his agency application, the plaintiff relies upon his affidavits filed on 7 May 2024 and 19 June 2024 ('June affidavit'), together with written submissions dated 5 August 2024. The plaintiff explained that he primarily relies on the June affidavit which updates his earlier affidavit in a number of respects. Neither affidavit was affirmed by the plaintiff owing to his current situation and the plaintiff sought that they be admitted pursuant to s 28A of the Oaths and Affirmations Act 2018 (Vic). To regularise matters, the plaintiff gave remote oral evidence confirming the contents of the June affidavit.
5. The defendant opposes the agency application, but does not object to an adjournment so that the plaintiff may engage the assistance of a legitimate third-party agent. While the defendant chose not to file any affidavit material in relation to the agency application, he relies on written submissions dated 26 August 2024. The defendant's submissions, which were ordered to be filed and served by 19 August 2019, were evidently late. This meant the plaintiff was unable to file written submissions in reply as contemplated by the June orders. The plaintiff said this placed him at a disadvantage. He also indicated that if the defendant wished to raise new matters or rely on new authorities by way of oral submissions he would apply to adjourn the application. The defendant's lawyer, Ms Nunnink, said her office took responsibility for the lateness of the submissions and confirmed the defendant did not intend to substantially depart from the written submissions or rely on any additional authorities not otherwise referred to by the parties. The plaintiff was satisfied with the defendant's position in this regard and content for the hearing of the summons to proceed. He also indicated that his oral submissions would necessarily be partly directed to addressing the respondent's written submissions.

1. In the June affidavit, Mr McKechnie deposes that his 'habitual residence and place of business' is his individual cell within his unit at Port Phillip Prison, 451 Dohertys Road, Truganina, Victoria 3029. He gives his occupation as 'paralegal service provider'. He also says he is the sole proprietor of a business contracted as an 'agent' to perform the work 'necessary or proper for the attainment of justice or for enforcing or defending the rights of the plaintiff.' In using the term 'agent', Mr McKechnie adopts an aspect of the headnote to the New South Wales Court of Appeal case of Cachia v Hanes[2] ('Cachia v Hanes') referred to in his summons, and which is extracted earlier in this ruling. He further explains that he is 'contracted to, and liable to pay, the business for which [he is] the sole proprietor, for the work necessary or proper for the attainment of justice or for enforcing or defending the rights of the plaintiff.'

1. Mr McKechnie makes a number of submissions in support of the agency application.
2. In his written submissions, Mr McKechnie contends that if a self-represented litigant is not entitled to costs, whether directly or through an agent, 'his or her opponent is then not only able, but arguably tactically compelled to make applications, no matter how weak' against the self-represented litigant. He says that even a failed application by the represented party would draw the resources of the self-represented litigant at no expense to the represented party, despite the unnecessary drain on Court resources. He refers to this scenario as the '"Free Punch" Costs Dilemma', a phrase which I understand he has coined. He says the agency application aims to ensure the defendant is liable for costs as near as equivalent to that which the defendant would be liable if the plaintiff were legally represented, ensuring the costs exposure of the parties are counterbalanced.
3. As stated above, Mr McKechnie makes reference to Cachia v Hanes, which considered whether out-of-pocket expenses claimed by a litigant in person on a taxation of costs should be limited by the amounts allowable for the same work when performed by a solicitor or solicitor's clerk.[3] In particular, he relied on the decision of Handley JA (with whom Clarke JA agreed) for the following propositions:

(a) depending on the facts of the case, a litigant in person may recover on taxation, for a particular item of claim for out-of-pocket expenses, an amount in excess of that allowed for a solicitor.[4] However, a litigant in person should never be allowed to recover, in total, more than would be recoverable by a solicitor;[5] and

(b) a litigant in person is entitled to employ agents to perform necessary work and recover the reasonable out-of-pocket expenses of doing so.[6]

1. Mr McKechnie also referred to the decision of the Court of Appeal of the Northern Territory in Step v Northern Territory of Australia ('Step')[7] and, in particular, the finding of Riley J (with whom Martin CJ and Mildren J agreed) that out-of-pocket expenses incurred by a lay advocate on behalf of a litigant in person are recoverable on taxation, where there is an agreement between the litigant and the advocate to reimburse those expenses.[8] Mr McKechnie accepted that, as a self-represented litigant, he was not entitled to be compensated for his time spent dealing with the proceeding.
2. At the hearing, Mr McKechnie posed the question: given he was entitled to employ an agent, why could he not be the agent himself? To underscore the point, he said he would not be prohibited from being a customer of his own business. He gave the example of the sole proprietor of a milk bar business who would be entitled to buy milk from his own business.
3. At the hearing, Mr McKechnie also confirmed that, while he has not yet registered the business referred to in his June affidavit, it was not necessary to do so. He confirmed the business was a provider of paralegal services. He said that, as the sole proprietor of the business, he provides a service to himself for which he is liable to pay and, in so doing, he incurs out-of-pocket expenses which may be recoverable on taxation if he is successful in his case. Mr McKechnie sought to characterise his June affidavit as constituting the contract between himself and the business as his agent, or at least evidencing the existence of such a contract. He said a contractual arrangement between himself and the business was necessary to define the parameters of the agency relationship and to confirm that any work undertaken by the business was not a gratuity.
4. Mr McKechnie submitted that determining the agency application earlier in the proceeding, rather than when the question of costs arises for consideration or at taxation, would shape the behaviour of the parties in the litigation and help them determine how to proceed. He reinforced the point with a colourful metaphor: 'all parties should know whether there is a loaded pistol in the duel before they go into the duel'.
5. He said that if the Court was not prepared to make the declaration and was disinclined to recognise the concept of what he termed 'self-agency', he would ask the Court to adjourn both his summons and the substantive proceeding to enable him to secure the services of an agent.

1. By way of summary, the defendant resists the agency application on the following bases:

(a) the plaintiff has not provided sufficient evidence of his proprietorship or any other office, title or role, within a registered business or company. In the absence of any identifiable business, it is unclear on what other basis the plaintiff seeks to be appointed agent;

(b) the plaintiff has provided no documentary evidence of any contract with an agent that shows he is liable to pay for work necessary or proper for asserting his rights. Nor has he provided sufficient details of the business he is seeking to appoint as his agent (other than to state it provides paralegal services);

(c) in the substantive proceeding, the plaintiff is seeking to prosecute a personal right against the defendant. It is a contrivance for the plaintiff to seek to engage himself, via a business for which he claims to be the sole proprietor, in order to recover costs if successful. In other words, he is not seeking to have the appointment of a genuine agent recognised;

(d) Cachia v Hanes and Step do not assist the plaintiff in the agency application as those cases involved work performed on behalf of self-represented litigants by third persons, being family members. However, it is accepted that neither authority define the concept of agency or who may be an agent;

(e) there is no legal authority in which a self-represented litigant has pre-emptively sought and obtained a declaration of the type sought by the plaintiff; and

(f) if the plaintiff is ultimately successful in the substantive proceeding, any determination with respect to whether the plaintiff is entitled to costs incurred in the proceeding by any agent is better determined by the Costs Court. Costs and expenses reasonably incurred by a third-party agent may be capable of recovery.

1. For the following reasons, I consider the declaration sought by the plaintiff in his agency application should not be made.
2. First, although there is no uniform definition of agency, the term at common law traditionally entails one person (the agent) having the authority or capacity to create or affect legal rights and duties as between another person (the principal) and third parties.[9] Although not always a decisive indicator of agency, the agent may be subject to the principal's control or direction.[10]
3. A litigant is entitled to employ agents to perform necessary work, but he or she cannot be both the principal and agent; they are distinct persons. The authorities relied upon by the plaintiff only serve to illustrate the fact that the agent who incurs costs or performs certain work is separate from the litigant in person as principal. In Cachia v Hanes, the wife of the litigant in person acted as his agent; whereas in Step, the father of the litigant in person incurred costs on her behalf. In the present case, there is no evidence of the existence of a company controlled by the plaintiff which would have the status of a separate legal entity. Further, while the plaintiff contends a sole proprietor of a business is entitled to acquire goods or services from their own business, this does not mean they are acting as their own agent. It is a false analogy.
4. It is not enough for the plaintiff to simply assert he is his own agent. A party cannot use a label to confer on a relationship a particular legal character that it does not actually have, or deny it a character that it does have.[11]
5. Secondly, the declaration sought by the plaintiff does not serve any purpose because the law in relation to the costs of self-represented litigants is sufficiently clear. The relevant legal principles are as follows.
6. A successful self-represented litigant cannot be compensated for their time and labour spent in preparation of their case or attending court.[12] Nor can they recover the time of other persons who are not legal practitioners but who have assisted in preparing the self-represented litigant's case.[13] An order for costs is not intended to compensate for some disadvantage or inconvenience suffered by litigants (legally represented or self-represented).[14] However, it is also clear that a self-represented litigant is permitted to recover reasonable out-of-pocket expenses incurred in the proceeding which, had the litigant been represented, could have been recovered by them or their legal representative.[15] Examples of such expenses and disbursements include: court fees, court-file search fees, process server fees, photocopying, court book preparation costs, and transcript costs.[16]
7. As a self-represented litigant, the plaintiff is also entitled to employ agents to perform necessary work and recover reasonable out-of-pocket expenses incurred, thereby avoiding a loss of personal time and mitigating the effect of the rule that denies recovery for such loss.[17] Examples of such agents include: law stationers, mercantile agents, or couriers who may assist in filing documents.[18] As occurred in both Cachia v Hanes and Step, a family member may also serve as the self-represented litigant's agent in appropriate circumstances. However, a contractual foundation for the engagement of the agent is necessary to distinguish it from a situation in which assistance is given to the litigant on a voluntary basis.[19] A self-represented litigant can also recover legal costs incurred for any period in which they were legally represented and which relate to the proceeding in question.[20] This includes costs pursuant to an 'unbundled retainer' for discrete legal services.[21]
8. It is unclear why the plaintiff is seeking to engage himself as his own agent (which he cannot do) in circumstances where, if he is successful in the substantive proceeding, he can recover reasonable out-of-pocket expenses he has personally incurred in any event. It may be the case that the plaintiff, as a self-described 'paralegal service provider', is attempting to circumvent the rule that he is not entitled to claim for his time and labour as a self-represented litigant. If that is correct, he is invoking the concept of agency as a device or artifice. At any rate, I consider the making of the declaration is inappropriate and should be refused because the plaintiff does not have a 'real interest' in seeking the relief,[22] and the declaration would produce 'no foreseeable consequences for the parties.'[23] Put simply, the declaration serves no purpose in the substantive proceeding.
9. Thirdly, the plaintiff's stated objectives for bringing the agency application are, respectfully, misconceived. His contention that, unless a self-represented litigant is entitled to costs, the other party would be 'arguably tactically compelled to make applications, no matter how weak' is based upon a number of false premises. I have already set out at length the extent to which a successful self-represented litigant would be entitled to recover his or her costs. Additionally, I do not accept that a represented litigant opposed to an unrepresented litigant has free rein to bring unmeritorious applications for tactical purposes. Such an approach would be inconsistent with the overarching purpose in s 7 of the Civil Procedure Act 2010 (Vic) ('CPA') to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute. Further, parties and their lawyers have specific overarching obligations in Pt 2.3 of the CPA, including: a paramount duty to the Court to further the administration of justice in relation to civil proceedings (s 16); an overarching obligation to only take steps to resolve or determine the proceeding (s 19); an overarching duty to ensure costs are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute (s 24); and an overarching duty to minimise delay (s 25). Breaches of these overarching obligations may enliven the Court's broad powers under ss 28 and 29 of the CPA to sanction parties and legal practitioners for any contraventions. Further, I disagree with the idea that a represented litigant opposed to an unrepresented litigant could make repeated failed applications at no expense to themselves. They would bear the burden of their own costs of doing so. Even if successful, a litigant who makes repeated interlocutory applications is unlikely to fully recover their costs. That is particularly so when opposed to an unrepresented litigant of limited financial means.
10. Lastly, even if I am wrong in each of my above conclusions, the plaintiff has not put forward sufficient evidence of the underlying contractual arrangement between himself and the business he claims to be liable to pay for work undertaken in enforcing or defending his rights. The plaintiff's June affidavit cannot constitute the underlying contract itself, and the evidence he does give of the existence of a contract is vague at best.

1. Although I am disinclined to make the declaration sought as part of the agency application, I am prepared to grant the plaintiff an adjournment of the substantive proceeding to allow him sufficient time to seek and secure the services of a third-party agent to assist him in his litigation. I appreciate this may take some time. Of course, any work undertaken by the agent could not constitute the provision of legal services, unless the agent was also a legal practitioner holding a current practising certificate. Alternatively, the plaintiff may seek to engage the services of a legal practitioner on a pro bono basis (or on some other basis).
2. While I consider that the substantive proceeding should be adjourned, I can see no reason to adjourn the plaintiff's summons. The summons has been heard and determined. I do not see why the Court would need to consider approving the plaintiff's engagement of a legitimate third-party agent on a later return of the summons. The adequacy of any underlying contractual documentation for such an engagement (to distinguish it from assistance provided on a voluntary basis), and the entitlement to recovery of out-of-pocket expenses incurred by the agent, are matters more suitably dealt with at taxation (in the event the plaintiff was ultimately successful).

1. For all of the above reasons, I refuse to make the declaration sought by the plaintiff in his agency application. I will ask the parties to confer in relation to orders to give effect to this ruling, including the period of the adjournment of the substantive proceeding and the costs of the agency application. In the event the parties cannot agree on the necessary orders, I will list the matter for a short mention.

[1] Emphasis in the original. I take the plaintiff's reference to 'holding 4' to be a reference to item 4 of the headnote for Cachia v Hanes (1991) 23 NSWLR 304, 321 ('Cachia v Hanes').

[2] (1991) 23 NSWLR 304.

[3] For completeness, this decision was appealed to the High Court, but special leave was limited 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, rather than his right to engage an agent: see Cachia v Hanes (1994) 179 CLR 403, 408 ('Cachia v Hanes (High Court)').

[4] Cachia v Hanes, 320-1 (Handley JA, Clarke JA agreeing at 315).

[7] [2007] NTCA 6; (2007) 20 NTLR 141 ('Step'); [2007] NTCA 6.

[8] Ibid, 145 [24], [27] (Riley J, and Martin CJ and Mildren J agreeing at 141).

[9] Petersen v Moloney [1951] HCA 57; (1951) 84 CLR 91, 94 (Dixon, Fullagar and Kitto JJ); International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16; (1958) 100 CLR 644, 652 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ).

[10] South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1541; (2000) 177 ALR 611, 646; [2000] FCA 1541, [136]-[137] (Finn J) ('South Sydney District Rugby League Football Club').

[11] Ibid, 645-6 [134], citing Ex parte Delhasse; Re Megevand [1878] UKLawRpCh 30; (1878) 7 Ch D 511, 532 and Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 18 ALR 385, 389.

[12] Cachia v Hanes (High Court), 408, 410-14, 417 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333, 339 [1] (Kiefel CJ, Bell, Keane and Gordon JJ, all of whom described the general rule at 339 [1] as: 'a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation'); Hoe v Lennox [2020] VSC 262, [26]-[27] (Forbes J) ('Hoe v Lennox').

[14] Cachia v Hanes (High Court), 414; Hoe v Lennox [27].

[15] Cachia v Hanes, 317; Step, 143 [12]; Hoe v Lennox [28].

[16] See Hoe v Lennox, [28]; Dal Pont, Law of Costs (5th ed, 2021), [7.29] ('Dal Pont') and the cases referred to there.

[17] Cachia v Hanes, 321; Step, 143-5.

[18] Cachia v Hanes, 321; Step, 143.

[19] Rowan v Cornwall (No 6) [2002] SASC 234, [16] (Debelle J); Step [16]-[17], [24].

[22] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 437 (Gibbs J), citing Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, 448 (Lord Dunedin); Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd [2016] VSC 42, [22], [24] (Elliott J) ('Director of Consumer Affairs Victoria v Mecon').

[23] Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55, 69 (Mason J, with whom Jacobs and Murphy JJ agreed at 69, Aickin J agreed at 71, cf Barwick CJ at 60); Director of Consumer Affairs Victoria v Mecon, [22], [27]-[28] (Elliott J).