Plaintiff v Defendant

1 At all presently material times, the plaintiff has been a prisoner in custody at Port Phillip Prison.

2 In recent years, he has brought several proceedings and applications in the Court, including at least two applications to the Court of Appeal.[1]

3 On 28 March 2024, the plaintiff filed an originating motion for judicial review seeking declarations that -

1. the Governor of Port Phillip Prison unlawfully interfered with the plaintiff's right to receive a letter sent from Victoria Legal Aid uncensored by prison staff by returning the letter to the sender.
2. in deciding to return to the sender the letter sent to the plaintiff at Port Phillip Prison from Victoria Legal Aid, the Governor of Port Phillip Prison failed to give proper consideration to the plaintiff's human rights of privacy, as it is defined in s 13(a) of the Charter [Charter of Human Rights and Responsibilities Act 2006 (Vic)], and the plaintiff's human rights of freedom of expression, as it is defined in s 15(2)(b) and (c) of the Charter.

4 On 7 May 2024, the plaintiff filed a summons in the proceeding seeking the following relief -

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

or in the alternative;

1. an adjournment to allow sufficient time for the plaintiff to seek and secure the services of such an agent[s] as referred to above.[2]

5 A timetable of orders was made in respect of the filing and service of affidavits and written submissions.

6 In that general connection, the plaintiff filed two unsworn affidavits.[3] The only apparent difference between his affidavits is that the first identifies the plaintiff's occupation as 'sole proprietor' whereas the second identifies his occupation as 'paralegal service provider'. It is presently sufficient to note that the second affidavit relevantly states -

I, Andre McKechnie, of habitual residence and place of business: Cell 123 Sirius East Unit, Port Phillip Prison 451 Doherty's Road Truganina Victoria; paralegal service provider by occupation, affirm:

Definitions

In this affidavit -

agent has precisely the same meaning 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

Contract

1. I am 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.
2. I am contracted to, and liable to pay, the business for which I am the sole proprietor, for the work necessary or proper for the attainment of justice or for enforcing or defending the rights of the plaintiff.[4]

7 On 5 August 2024, the plaintiff filed written submissions which state, relevantly -

Purpose

1. If a self represented litigant is not entitled to costs whether directly or through and agent, his or her opponent is then not only able, but arguably tactically compelled to make applications, no matter how weak, against the plaintiff. For even a failed application would draw the resources of the plaintiff at no expense to the defendant, despite the additional otherwise unnecessary drain on Court resources.
2. This application aims to ensure that the defendant is liable for costs as near as equivalent to that which the defendant would be liable if the plaintiff were legally represented.

Authorities

1. The primary principles depended upon are enunciated in the holdings 3 and 4 of Cachia v Hanes (1991) 23 NSW 304. These principles are then supported, confirmed the correct authority, considered and applied in both Step v Northern Territory [2007] NTSC 21 and the subsequent Step v Northern Territory of Australia [2007] NTCA 6.
2. Of significant utility to this application Step v Northern Territory of Australia [2007] NTCA 6 at [27] states that:

...Whilst a litigation guardian may not be entitled to receive remuneration for acting in that capacity, the services to which reference has been made were not carried out by Mr Step in his role as the litigation guardian. They were a separate and independent exercise and I see no reason why his role as litigation guardian should preclude from recovery [of] out of pocket expenses incurred by the litigant in person in this regard.

1. Its a very short step from this statement to conclude that an independant litigant in person similarly should not be precluded from recovery of equivalent out of pocket expenses consistent with the principles enunciated in the holdings 3 and 4 of Cachia v Hanes (1991) 23 NSW 304.

Customer of Ones Own Business

1. There is nothing in law that prohibits a business owner being a customer of his own business, and in being such a customer, to be liable to pay for any product or service that business may provide to him.[5]

8 The defendant subsequently also filed written submissions.[6] Among other things, he submitted, in substance, that -

(a) the plaintiff's affidavit evidence was insufficient;

(b) the plaintiff's 'proposed system' was not 'a true agency';

(c) in that regard, the plaintiff's endeavour to engage himself for the purpose of recovering costs is a 'contrivance';

(d) the circumstances were to be distinguished from those considered by -

(i) the New South Wales Court of Appeal in Cachia v Hanes ('Cachia CofA');[7] and

(ii) the Court of Appeal of the Northern Territory in Step v Northern Territory of Australia ('Step CofA');[8]

(e) no authority would support the obtaining by the plaintiff of 'pre-emptive' declaratory relief of the kind sought; and

(f) any entitlement of the plaintiff to costs incurred by any agent should be determined by the 'Taxing Master' [sic: Costs Court].

9 The plaintiff's application was heard before an Associate Justice on 4 September 2024. The plaintiff appeared in person together with a representative who sought to appear pro bono. The representative was ultimately permitted to appear as a McKenzie friend. The plaintiff explained that he was uncertain as to whether the representative would be his lawyer (which seems to have been thought by the plaintiff to depend upon the outcome of his application).[9]

10 In the course of that hearing, the plaintiff confirmed and adopted the contents of his previously unaffirmed and unsworn affidavit dated 19 June 2024.[10]

11 The plaintiff thereafter addressed his application; in the course of which he took his Honour to the affidavit as well as to aspects of Cachia CofA and Step CofA.[11]

12 His Honour asked the plaintiff several relevant questions, including in respect of the concept of agency and the roles of principal and agent. In that context, his Honour queried the notion that the plaintiff might be able to 'act as an agent for yourself', to which the plaintiff advanced several submissions including that his 'deductive analysis' was that -

... if say I was to own a milk bar, I was the sole proprietor of a milk bar and I was to take milk from the customer's area and take my own money and put it into the cash register, I essentially was a customer of my own business.

Ah, I can't see that there's a problem with that and in doing that, I've acted ah, in a service provided to myself but in two different capacities, as myself as a customer and as myself as the business owner. Now, we can extrapolate that idea to the point where the business becomes either a registered business or whether it becomes a company and we know that a company has an independent identity and then we can separate ... the identity.[12]

13 The plaintiff thereafter seemed to submit that in Cachia CofA the term 'agent' had been used in sense that was 'looser' than the manner in which it had been used in a High Court authority to which his Honour referred.[13]

14 His Honour then asked about the nature of the plaintiff's 'business'. The plaintiff essentially said that, as 'explained' in his affidavit, 'it' was a 'paralegal service' involving 'legal efforts in the sense that they're not professional'. When asked about the contract between himself and the 'business', the plaintiff said that it was 'in the affidavit itself'.[14]

15 As to why he would need the declaration sought, the plaintiff said that it 'balances the battlefield' because otherwise the defendant would not be required to cover any of the 'costs'.[15]

16 The plaintiff then referred to what he described as the 'free-punch dilemma' and later submitted that -

... if a plaintiff, a self-represented ah, defendant or party decides to employ an agent, then for the very same work, the opponent would be required ... to pay - or may be required, potentially required to pay costs if the party is successful of course.

But ..., the opposite's not true. They don't pay costs and they're not required to pay costs for a self-represented litigant who doesn't have an agent so ... it would be silly I think for ... a self-represented litigant not to employ an agent ..., if he could find someone to do that job and the most reasonable thing is to ask the question which I'm doing today ..., or posing the question at least of that ... why can't that agent be the plaintiff himself.

If he can do the work ..., in law ..., if he registers himself as a company, there's absolutely no doubt that he would be able to employ himself as an agent so this seems to be the question today, whether ... the plaintiff can be the agent. That seems to be the only question.[16]

17 Later, the plaintiff seemed to re-describe the 'question' as 'whether the self-agency ... can exist or not'.[17]

18 The legal representative for the defendant responded in oral submissions that, in substance, encapsulated the points made earlier in writing.[18]

19 In reply, among other things, the plaintiff submitted that -

(a) the declaration had been sought because, in substance, he could not be 'sure about ... what the state of affairs are with regard to costs' and, he said, such a declaration would serve to 'shape the behaviour' of the parties;[19]

(b) it was clear from the reasoning in Cachia CofA that agents need not be 'professionals';[20] and

(c) in that regard -

... in Cachia v Hanes, it was ... Mr Cachia's wife who was the agent, not any professional of any sort ... and in Step ... it was the father. Again, not a professional agency ..., so I think it should be made clear that ... we can't rely on this idea that ... there's a need for this ... professional type agency ...[21]

20 His Honour then asked the plaintiff about 'the work of the agent'. The plaintiff explained, in part, as follows -

... there'd be no way that ..., the agent that I'm envisaging should undertake professional legal work unless he is a professional ..., and in this case, I am not. ... I've emphasised the word paralegal service to make the point that this is unqualified work ...[22]

21 That said, the plaintiff referred to a passage in the reasoning of Handley JA in Cachia CofA[23] and submitted -

... I'm ... actually not quite certain, what they're referring to there is that the in total costs that a ..., self-represented litigant ..., can acquire ..., can be made to the extent ... as what a solicitor will charge for professional fees but not for professional fees; for other, ... items that he can do. So these items aren't restricted. ...

... what ... Their Honours are saying in that case is that there is no restriction to confine a self-represented litigant to those costs. He can go above those provided that in total the amount doesn't come to anything more than a solicitor would charge for professional fees. In other words, a self-represented litigant can match the costs of a ... professional service provider without undertaking those professional services and that's what ..., this application endeavours to do. The applicant has no intentions of ..., unless he graduates from a law degree, of undertaking any professional work ..., which would be I think unlawful.[24]

22 The plaintiff thereafter confirmed that a self-represented litigant could not claim compensation for time spent in litigation and only for 'expenses and other liabilities incurred'. However, he then returned to Cachia CofA and stated -

... what they're talking about when they refer to a self-represented litigant can't claim for their time means that they're seeking to be compensated for the time away from their employment.

... there's a discussion about how that could be unfair because somebody might have a job that pays more than another person and ... my personal situation is that I don't have a job so I couldn't be compensated for anything because I'm not taking any time away from any work. ...[25]

23 His Honour later delivered detailed written reasons in support of his decision that, relevantly, the plaintiff's application for declaratory relief should be refused and the summons dismissed.[26]

24 His Honour's reasons include a detailed recitation of the background, evidence and submissions of the parties.[27] No part of that was presently said to have been in error.

25 Under the heading 'Consideration', his Honour stated -

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. Although not always a decisive indicator of agency, the agent may be subject to the principal's control or direction.
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.
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. 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. An order for costs is not intended to compensate for some disadvantage or inconvenience suffered by litigants (legally represented or self-represented). 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. Examples of such expenses and disbursements include: court fees, court-file search fees, process server fees, photocopying, court book preparation costs, and transcript costs.
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. Examples of such agents include: law stationers, mercantile agents, or couriers who may assist in filing documents. 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. 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. This includes costs pursuant to an 'unbundled retainer' for discrete legal services.
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, and the declaration would produce 'no foreseeable consequences for the parties.' 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.[28]

26 On 20 February 2025, the plaintiff filed a notice of appeal under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

27 It is necessary for the plaintiff to show material error.[29] In that connection, the plaintiff's notice of appeal states the following five grounds of appeal -

1. Associate Justice Hetyey constrains the meaning of the word "agency" beyond that which is necessary for the use within the context in which the plaintiff raises it.
2. Associate Justice Hetyey errs in declaring that an agency relationship could not exist between the different capacities of a single person.
3. Associate Justice Hetyey incorrectly determines that the declaration sought by the plaintiff "does not serve any purpose". To make this incorrect determination Associate Justice Hetyey relies upon "the law in relation to costs of self-represented litigants" and ignores the other capacities a person, including a self-represented litigant may hold. For example, a self-represented litigant may also be a professional typist, capable of acting as a typing agent for others and or himself.
4. Associate Justice Hetyey fails to recognise that the declaration sought by the plaintiff could reasonably result in a behavioural change in the parties immediately upon the declaration being made, or the declaration sought being finally refused. For example, the plaintiff may reasonably opt to immediately withdraw from the substantive proceeding if the declaration sought were to remain without being granted. Or alternatively, if the declarations sought were to be granted, the defendant may reasonably opt to immediately settle.
5. Associate Justice Hetyey incorrectly determines that 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" in the particular context.[30]

28 The notice of appeal also seeks the making of a declaration in the form sought below.[31]

29 Each party subsequently filed written submissions. It is presently unnecessary to rehearse the detail of those documents. In substance -

(a) the plaintiff addressed each of his five grounds of appeal;[32]

(b) the defendant responded in considerable detail (including with reference to relevant authority); [33] and

(c) the plaintiff emphasised several points in reply.[34]

30 The appeal came on for hearing before me on 2 September 2025. Each party advanced oral argument with commendable economy.

31 The plaintiff addressed each of his five grounds of appeal. In that regard, he -

(a) referred to Cachia CofA and Step CofA and submitted that his Honour had unnecessarily constrained the meaning of the word 'agency';[35]

(b) referred to Rowley, Holmes & Co v Barber ('Rowley Holmes')[36] and Leximed Pty Ltd v Morgan ('Leximed')[37] and submitted that his Honour had erred in determining that an 'agency relationship could not exist between different capacities of a single person';[38]

(c) emphasised what he described as the 'commonsense view' that 'there are circumstances where a person can be in contract with oneself' and thereafter referred to his analogy involving an owner of a milk bar;[39]

(d) submitted that the purpose of his application was 'to determine whether a person can be an agent for oneself in terms of the Cachia principle';[40]

(e) referred to a textbook[41] and submitted that his Honour had failed to recognise that a declaration could 'reasonably result in a behavioural change in the parties';[42] and

(f) referred to what he described as the 'standard' in Cachia CofA and Step CofA and submitted that his Honour had incorrectly determined that the plaintiff had not put forward sufficient evidence of the underlying contract.[43]

32 In response, counsel for the defendant submitted that -

(a) none of the plaintiff's five grounds establishes that any material error was made;[44]

(b) his Honour addressed the evidence and accurately stated and applied the law;[45]

(c) there was insufficient evidence of the existence of a separate legal entity;[46]

(d) in that regard, unlike the present case, in Cachia CofA and Step CofA there was 'evidence of work actually performed, evidence of expenses incurred and ... [evidence of] distinct individuals performing that work';[47]

(e) more broadly, Cachia CofA and Step CofA do not assist the plaintiff;[48]

(f) there had been a 'lack of clarity and evidence around the paralegal's role';[49]

(g) in that regard, there did not appear to be 'any delineation between Mr McKechnie as the party and Mr McKechnie as the paralegal';[50] and

(h) there was no practical utility in what was sought as -

[The plaintiff] is entitled to recover out of pocket expenses reasonably and genuinely incurred in pursuit of his claim. And this is the case irrespective of who incurs those expenses insofar as they relate to him pursuing his claim. The paralegal can incur those expenses, the plaintiff can incur those expenses. They are recoverable ... in the proceeding.

What can't be compensated is the time [that the plaintiff] spends in preparing and pursuing his claim and that's really the case irrespective of whether he incurs the time as the plaintiff or he incurs the time as the paralegal.[51]

(a) neither Cachia CofA nor Step CofA 'determined whether a person can act as their own agent';[52]

(b) the subsequent decision of the High Court in Cachia v Hanes ('Cachia HCA')[53] is distinguishable, in that -

It's much different to seek compensation for something that you didn't do, rather than to seek costs for something that was done in aid of defending the case.[54]

(a) extracted the relevant part of his Honour's reasons for refusing the plaintiff's application for declaratory relief; and

(b) referred to and considered the substance of the plaintiff's arguments advanced below and on appeal.

35 In my view, his Honour made no material error. Indeed, I consider his Honour's disposition of the application to have been plainly correct. For those reasons alone, the appeal should be dismissed.

36 More broadly, the underlying application and present appeal seem to me to be almost perfect examples of misconceived and wasteful litigation pursued by an unrepresented litigant.[56]

37 In that regard, the wellspring for the plaintiff's application seems primarily to have been what he was apt to describe as 'holdings (3) and (4)' in Cachia CofA.

38 The so-called 'holdings' were, in fact, no more than statements appearing in the headnote to the reported case that were purported to be derived from passages in the reasons of Handley JA, with whom Clarke JA agreed.[57] Those passages concern the recovery of out of pocket expenses.

39 Other aspects of the reasons of Handley JA have significant present relevance. In particular, his Honour considered the relevant statutory definition of 'costs' as well as applicable aspects of the relevant rules of court. In that context, his Honour -

(a) observed that the privilege of a litigant to represent themselves was never intended to be a means by which such litigants could earn 'fees, charges or remuneration';[58]

(b) also observed that any principle that entitled litigants in person to be remunerated for time spent in preparing and conducting their own cases 'would be mischievous in practice';[59]

(c) explained that the limited indemnity afforded to a represented litigant is a compromise; as is the rule that a litigant in person can only recover out of pocket expenses;[60]

(d) referred to the specific items and amounts sought to be recovered and noted that the litigant and his wife had filed affidavits deposing to the bona fide nature of the payments made;[61] and

(e) defined the issue of principle as being, in substance, whether the amounts allowable as out of pocket expenses in a taxation of costs had been limited to those allowable under the rules of court when performed by a solicitor or solicitor's clerk.[62]

40 It will be plain enough that no part of the reasoning of Handley JA in Cachia CofA may reasonably be interpreted as supporting any notion that, via the purported device of 'self-agency', an unrepresented litigant might be able to recover any 'costs' or, for that matter, any out of pocket expenses that would otherwise be disallowed.

41 Nothing in Step CofA, on which the plaintiff also relied, is materially different to the above; and, I might say, nothing in Cachia HCA would lend any support to the notion either.

42 In that regard, Cachia HCA concerned disallowance of a claim made in respect of time lost based on the litigant's self-employment as a consulting engineer.

43 In that connection, Mason CJ, Brennan J, Deane J, Dawson J and McHugh J stated -

It is fundamental to the appellant's argument that the time he lost in preparing and conducting his case constitutes "costs" within the meaning of this rule [Supreme Court Rules 1970 (NSW), r 23(2)]. He is, however, unable to sustain that proposition. The "costs" provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of "costs".

...

To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.[63]

44 While, as I have noted, the plaintiff sought to distinguish Cachia HCA as relating only to 'something that you didn't do, rather than ... costs for something that was done in aid of defending the case',[64] it is plain that the reasoning to which I have referred stands strongly against any broad proposition that 'something done' by the plaintiff in aid of his litigation could ever be relied upon as giving rise to 'costs' liable to be recovered.[65]

45 Notwithstanding all of the above, of course, the plaintiff sought the declaration stated in his summons and proffered his affidavits in support of the relief sought.

46 I have earlier extracted the form of declaration sought, however it is convenient to repeat the presently relevant terms -

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 ...

47 It will be evident that the form of the proposed declaration purports to identify the plaintiff as a 'sole proprietor' and, inferentially, suggests that he should be able to 'act' and therefore recover in respect of the cost of 'work necessary or proper for the attainment of justice or for enforcing or defending the rights of the plaintiff'.

48 Plainly enough, despite the purported linkage to 'holding 4' in Cachia CofA, a declaration made in those terms would be at least capable of being said to extend beyond authorising the recovery of out of pocket expenses of any ordinary kind and, indeed, to trespass into the giving of some kind of broad advance authorisation in respect of 'work' done by the plaintiff in his litigation.

49 At the very least, the true meaning of a declaration in that form is so tendentious, vague and debateable that it could never properly be made.

50 The position was not assisted by the plaintiff's brief affidavit, the presently relevant terms of which I have also already relevantly extracted.

(a) identifies his occupation as 'paralegal service provider';

(b) also identifies himself (twice) as 'sole proprietor' of a 'business';

(c) repeats the purported linkage to 'holding 4' in Cachia CofA;

(d) also repeats (twice) the vague and tendentious description of 'work necessary or proper for the attainment of justice or for enforcing or defending the rights of the plaintiff'; and

(e) otherwise states that he has been 'contracted' to pay the business of which he is sole proprietor in respect of such 'work'.

52 From what I have already said, it will be evident that the scope and true meaning of that supposed 'evidence' is so vague and debateable as to be practically meaningless. It certainly does not follow from the fact that such 'evidence' was given that it must be accepted.

53 It should also be evident that, on its face, such 'evidence' is, on at least one view, far from readily conformable with the authorities to which I have already referred. For that matter, it is not obviously conformable with other presently relevant and established principles, such as that -

(a) at common law, there must be at least two parties to a contract;[66]

(b) an 'agent' is a person who is, by virtue of authority conferred upon him or her, able to create or affect legal rights and duties between 'another person', who is called the 'principal', and third parties;[67] and

(c) if a person possesses an independent right to act in a particular way and without the authority of another, then that person does not act as an agent.[68]

54 In argument, the plaintiff sought to sidestep at least the first of the above propositions by -

(a) referring to Rowley Holmes and Leximed in support of a contention that 'one person may function in dual capacities';[69] and

(b) otherwise referring to what he described as the 'commonsense scenario' of the 'milk bar owner'.[70]

55 Rowley Holmes concerned a non-solicitor employee who had been appointed sole executor and trustee of the deceased estate of a solicitor and had also been bequeathed the solicitor's practice. An industrial issue arose concerning whether the employee had subsequently been able to contract to employ himself in the practice.

56 Kilner Brown J, for the appeal tribunal, accepted a distinction between the employee's individual capacity and that of personal representative of the estate. In so doing, his Honour rejected the submission that -

... the office of personal representative or administrator here could not give to the applicant sufficient separate legal personality to enable him to make an arrangement, an agreement, a contract, with himself in a different capacity.[71]

57 In that connection, Kilner Brown J referred to a statement from Halsbury's Laws of England to the effect that a person with 'representative capacity' may be able to contract with himself (or herself) as an 'individual'. A footnote to that statement refers to 'a trustee, executor, administrator or agent'.[72]

58 Each of the capacities identified in the footnote is, self-evidently, representative in nature. That is to say, representative of another person; and, of course, the circumstances under consideration in Rowley Holmes were that the employee was also an administrator representative of the estate of the deceased.

59 I should say that it is evident from the more recent decision of Philip McMurdo J in the Supreme Court of Queensland in Leximed, that the authority of Rowley Holmes is at least debateable.[73]

60 That said, whether or not Rowley Holmes is strictly to be regarded as of continuing authority, it will be evident from what I have already said that nothing in the statement and footnote from Halsbury's or, indeed, the broader reasoning in Rowley Holmes, would reasonably lend support to any contention that a person may contract with himself (or herself) absent a 'sufficient' separation of legal personality. Nor, does the recent reasoning of Philip McMurdo J in Leximed.

61 As to the plaintiff's 'commonsense scenario', the simple point is there is no separation of legal personality between an individual 'milk bar owner' and the 'business' of which he or she is 'sole proprietor'. Both are the same person. It follows that there would strictly be no need for such a person to pay themselves for a bottle of milk which he or she already owns.

62 In that general context, the obscure nature of much of the plaintiff's submissions before the Associate Justice could not stand to make his evidence any more able to be accepted, or his form of declaration any more able to be ordered.

63 In that regard, as I have earlier noted, the Associate Justice asked the plaintiff to explain the nature of the 'business' to which he was referring, and the plaintiff referred to his 'paralegal service' which was said to involve 'legal efforts in the sense that they're not professional'.[74] Precisely what such 'legal' efforts might be thought to have been, remained obscure.[75]

64 That said, the plaintiff said that he needed the declaration sought in order to cover the 'costs' and the 'work'.[76] Again, precisely what that 'work' was, and the associated 'costs' were, remained obscure.

65 In any event, those and later submissions suggested that the plaintiff was of the view that such 'costs' could be recoverable if he employed an agent, but not otherwise.[77]

66 It will be obvious from the earlier discussion of Cachia CofA and Cachia HCA that such broadly stated contentions were beset with significant problems of contrary principle.

67 For that matter, the above discussion of Rowley Holmes and related principles indicates that the plaintiff's submissions in respect of what he described as 'self-agency'[78] were similarly problematic in principle.

68 Finally, the obscurity and vagueness in much, or all, of the above emerged as likely to be explained by the fact that -

(a) the plaintiff considered the declaration to be required in order that the parties might be 'sure about ... the state of affairs with regard to costs';[79]

(b) despite the terms of his affidavit, the 'agent' to which the plaintiff was referring seems to have been no more than something that he was 'envisaging';[80] and

(c) in that regard, as the plaintiff thereafter acknowledged, 'I don't have a job so I couldn't be compensated for anything because I'm not taking any time away from any work'.[81]

69 In short, in the circumstances to which I have referred -

(a) the form of declaration was in terms that could never have been ordered;

(b) the plaintiff's 'evidence' was similarly vague and problematic;

(c) the plaintiff's submissions did not engage with and resolve the various difficulties;

(d) it became plain enough that, in significant part, if not entirely, the plaintiff was pursing the application in the absence of anything much in the way of real and established facts and in order that he might be guided by the Court for the future;

(e) in that sense, the application was really little more than an impermissible endeavour to obtain judicial advice dressed up as an application for declaratory relief; and

(f) the entire exercise was beset with problems of contrary established principle.

(a) the content of the plaintiff's submissions on the appeal were little different to those advanced before the Associate Justice and none of those submissions resolved the many problems to which I have referred; and

(b) while it may be accepted that the risk of costs orders can 'shape behaviour', it does not follow that the form of declaration sought in the present case should ever have been ordered.

71 As I have indicated, the appeal must be dismissed.

72 I will hear from the parties concerning the form of orders and the disposition of any consequential issues.

[1] In argument below, the plaintiff described himself as having had 'a little bit of experience in the court': Appeal book ('AB') 44. See generally McKechnie v Magistrates' Court (Wangaratta Victoria) & Anor [2020] VSC 358; McKechnie v Victorian Civil and Administrative Tribunal and Anor (2020) VR 54; McKechnie v State of Victoria [2022] VSC 801; McKechnie v State of Victoria (Costs Judgment) [2023] VSC 234; McKechnie v State of Victoria (Computer Judgment) [2023] VSC 259; McKechnie v Secretary to the Department of Justice and Community Safety (Weekly Payments Judgment) [2023] VSC 542; McKechnie v Secretary to the Department of Justice and Community Safety (Costs Judgment) [2023] VSC 638; McKechnie v State of Victoria [2023] VSCA 158; McKechnie v Commissioner for Corrections Victoria [2024] VSC 114; McKechnie v Commissioner for Corrections Victoria (Costs Ruling) [2024] VSC 185; Andre McKechnie v Detective Peter Evans (Recusal Application) [2024] VSC 192; McKechnie v State of Victoria (Recusal Application) [2024] VSC 193; McKechnie v Evans (Communications Summonses) [2024] VSC 295; McKechnie v State of Victoria [2024] VSC 359; McKechnie v Commissioner of Corrections (Reasons Summons) [2024] VSC 370; McKechnie v Commissioner of Corrections (Amendment Summons) [2024] VSC 413; McKechnie v Victorian Ombudsman [2024] VSC 451; McKechnie v Evans (Production application - preliminary issue) [2024] VSC 661; McKechnie v Evans (Production Application - Conclusion) [2024] VSC 689; McKechnie v Secretary of the Department of Justice [2024] VSCA 170; McKechnie v State of Victoria [2024] VSCA 171.

[7] (1991) 23 NSWLR 304 ('Cachia CofA').

[8] [2007] NTCA 6; (2007) 20 NTLR 141. The plaintiff also cited the first instance decision in Step v NTA [2007] NTSC 21, although nothing presently turns upon that further reference.

[13] AB 41. Cf Petersen v Moloney [1951] HCA 57; (1951) 84 CLR 91, 94 ('Petersen').

[26] AB 58-71: McKechnie v Ma'a (in his capacity as the Governor of Port Phillip Prison) [2024] VSC 768. Cf AB 4-5.

[28] AB 66-9 (emphasis in original) (citations omitted).

[29] Oswal v Carson [2013] VSC 355, [11].

[32] Plaintiff's outline of submissions filed 17 June 2025.

[33] Defendant's outline of submissions filed 4 July 2025. I should say that the defendant's outline of submissions was of excellent quality, and helpful.

[34] Appellant's outline of submissions in reply filed 21 August 2025.

[36] [1977] 1 WLR 371 ('Rowley Holmes').

[37] [2016] 2 Qd R 442 ('Leximed').

[41] GE Dal Pont, Law of Costs (LexisNexis Australia, 3rd ed, 2013) [1.1].

[53] (1994) 179 CLR 403 ('Cachia HCA').

[56] Cf Djime v Le [2016] VSCA 105, [1]; Hingst v Construction Engineering (Aust) Pty Ltd [2019] VSCA 67, [3].

[57] In particular Cachia CofA (n 7) 320[E]-[G], 321[B]-[C].

[60] Cachia CofA (n 7) 318[A]-[C].

[65] See also Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333, 344 [22].

[68] Kennedy v De Trafford [1897] UKLawRpAC 13; (1897) AC 180, 186-8. Cf Jones v Bouffier [1911] HCA 7; (1911) 12 CLR 579, 611.

[73] Leximed (n 37) 448-9 [24]-[26].