Cachia v Hanes

[1993] HCATrans 153

..

.

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S59 of 1992

B e t w e e n -

SAVIOUR LAURENCE CACHIA

Appellant

and

KENNETH HANES and NOLA HANES

Respondent

MASON CJ

BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Cachia(2) 1 16/6/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 JUNE 1993, AT 10.24 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friends, MR K.P. SMARK and

MR R.C. TITTERTON, for the appellant. (instructed

by Vandenberg Reid)

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friends, MR S.J. McMILLAN, for the

respondent. (instructed by Macphillamy Cummins &

Gibson)

MASON CJ: Yes, Mr Jackson.

MR JACKSON:  Your Honours should have copies of a document

misleadingly entitled "Outline of Submissions".

May I say two things about the document: the first

is we have endeavoured to set out rather more fully

than otherwise would be the case the submissions

which we wish to make in that document for two

reasons. The first is that it seemed necessary in

the first place to set out, as appears in the first
few pages, the circumstances leading to the issues
in the case; and the second thing is that in
examining the case it seemed that unless one were
to put some of it in writing it might take rather
longer than the time estimated. That is the first

thing I would like to say.

The second thing, Your Honours, is this:

because of the unusual nature of the case, and by

that I mean in a sense that the requirement for

counsel has been one imposed by the Court upon the

client, we have taken the liberty of enclosing with

our outline of submissions two documents which the

client would himself wish to place before the Court

as his submissions in the matter. May I say in

that regard, Your Honours, two things: the first

is that much of the subject-matter of them is

covered, in fact, by the submissions which we would

be making; the second of them is that whilst they

appear lengthy that is really because substantial

parts of cases have been extracted in full.
So, Your Honours, might I then proceed to our
submissions.	As is apparent from paragraphs 1 to
5 - - -

MASON CJ:	Mr Jackson, if you would just give us the opportunity of reading the document.
MR JACKSON:	I am sorry, Your Honour.

MASON CJ: Yes, Mr Jackson.

MR JACKSON:  Your Honours, as is apparent from paragraphs 1

to 5 of the outline of submissions, the underlying

facts may be stated very shortly. They are these:

Cachia(2) 16/6/93

the appellant defended himself successfully in proceedings brought against him in the Supreme

Court of New South Wales.	The proceedings were in
the equity division.	They were for an order that

he restore the support of some land at Castle Hill.

In consequence of his success in the

proceedings, he obtained an order for costs in his
favour, and the bill of costs which he presented
was subject to various objections which have been

relied on in proceedings before the taxing officer,

a master and the Court of Appeal. In those

proceedings the appellant was successful completely

in some respects, partially in others and not at

all in respect of the remainder.

There were appeals in respect of some items in

respect of which he was successful partially or not
successful at all, but not in respect of others.

Paragraphs 3, 4 and 5 of the outline of submissions

set out the fate of the various items and those

which remain for determination. Your Honours, in

dealing with the remaining items, the Court is not

concerned of course with the number of dollars

claimed in respect of each item, but really with

the anterior question of the entitlement to recover

in respect of them at all.

Your Honours, might I then move to our submissions upon those issues.	The nature of the
issue may be seen from the bill of costs.	May I
take Your Honours to it for just a moment.	It
appears at pages 1 to 5 of the record.	What

Your Honours will see is that a number of items

remain matters in respect of which he has been

unsuccessful.

They are, for example - perhaps I should

indicate them to Your Honours - items 1, 3, 5, 9,

10, 11, 12 and 13, 16, 18, 20, 21, 22 and 23, 27,

29, 31. Could I pause at 31 where Your Honours

will see that a sum is added for travelling

expenses. Then item 33, item 35 and item 37 and

then finally on page 5, items 40, 42, 44 and 45.

Your Honours will see in respect of item 44 that a sum is there for travelling expenses.

Your Honours, I will not go through the nature of them because I will come back to a few later,

but they are such matters as you wfll see in

items 21, 22 and 23, he is charged something for

perusing a letter which the plaintiff sent to him

and for perusing affidavits which they served on

him, and there are other matters which one can go

through and see.

Cachia(2) 16/6/93

Your Honours, in support of the bill of costs,

he filed an affidavit which you will see at page 7.

He sets out his qualifications in paragraph 1; in

paragraph 2 his occupation; the fees which he

charges; and Your Honours will see, if one goes to

paragraphs 5, 6 and 7, the bases which he there

sets out in support of his claim.

Now, Your Honours, the starting point, in our submission, is to identify the source of the power

to make an award of costs and then to deal with the

provisions related to that power. Your Honours,

the source of power to make an award of costs is

now to be found, in the Supreme Court of New South

Wales, in section 76 of the Supreme Court Act 1970.

Section 76 is a provision which is rather similar to the provision which appeared in the

Judicature Acts when they first came in, and

Your Honours will see that section 76(1) provides

that:

(a) costs shall be in the discretion of the

Court;

(b) the Court shall have full power to
determine by whom and to what extent costs are

to be paid; and -

then there is provision for taxation on any basis

which the court might choose. So that Your Honours

will see that is the source of the power and

includes power to determine by whom and to what

extent costs are to be paid.

Your Honours may recall that in a case to

which I will come in a moment, Knight v FP Special

Assets Limited, the Court held that the equivalent

power was not limited to making an order for costs

against a person who was a party to the action but

might be made against a person who was not a party

to the action.

Your Honours, section 76 is to be read with

section 19(1) which defines the term "costs". If

Your Honours are using the Ritchie's book, it is at

page 1060. Section 19(1) says that:

"Costs" includes fees, charges, disbursements,

expenses and remuneration.

Now, Your Honours, there are several features about

these provisions which we would invite Your Honours

to note at this point. The first is that "costs",

of course, is a defined term, the definition is not

exhaustive. Some of the terms comprehended within

the definition clearly enough encompass matters

cachia(2) 16/6/93

other than lawyers' fees, and I refer to the terms

"disbursements" and "expenses".

The next thing we would invite Your Honours to

note is that the power conferred by section 76 is

expressed in the widest terms. It does not contain

any expressed limitation upon its ambit, indeed, in

a sense, the reverse is the case, and I would refer

Your Honours again to the words:

Full power to determine by whom and to what

extent costs are to be paid.

TOOHEY J:	Mr Jackson, there is a definition of "costs" in section 76(2) but it is of a different order to the
definition in section 19(1). It rather looks as if
you import the language of section 19(1) into
section 76(2).

MR JACKSON: Yes, Your Honour. What one seems to have is

this, that if one were to look at subsection (2) it

says:

The expression "costs" includes

in subsection (1) particular things~ and then Your

Honour, one also has the basal concept of the term

"costs", we would submit, being that referred to in

section 19(1).	So one has a double definition, in
a sense.

Your Honours, if I could go back for just a moment to the definition in section 19(1), in

circumstances such as a definition of that kind,

where there is no express limitation upon its ambit

the Court, in our submission, should not seek to

imply one. Your Honours, some observations to that

effect were made by members of the Court in Knight

v FP Special Assets Limited, (1992) 174 CLR 178.

May I refer Your Honours to the joint judgment of

Your Honour the Chief Justice and Justice Deane at

page 185 about point 6 in a passage which goes

through to about point 9 on the same page.

Your Honours will see particularly that the existence of the possibility that "an exercise of

extravagant and unjust", was held not to provide a jurisdiction against a non-party would be

justification for the imposition of the courts

by way of implication of an arbitrary

limitation on the general jurisdiction -

To the same effect are further observations by

Your Honours at page 192 about half-way down the

Cachia(2) 16/6/93

page going to about point 7 where Your Honours

express a:

conclusion that the wide words ..... should not

be read down -

Your Honour Justice Dawson was to the same effect

at page 202 about point 9 on the page in a passage
which goes through to about point 4 on page 203.

Could I mention in passing Your Honours, that the

passage in Aiden Shipping to which Your Honour

there referred is, I think, in (1986) AC 965 at

page 979. I will not take Your Honours to it, but

that appears to be the reference.

McHUGH J: But, Mr Jackson, does a case like Knight really

assist in a case such as this? It is impossible to

interpret the term "cost" without an understanding

of the common law and equity practices. For
example, if you transfer part of the inclusive

terms across to section 76, say, "remuneration

shall be in the discretion of the Court", it is
meaningless. "Expenses shall be in the discretion

of the court", that is meaningless unless you have some understanding of what the courts have done in the past in relation to those matters.

MR JACKSON: Well, Your Honour, could I just say this -

might I say two things, one at a stage anterior to

that and the other in direct response to what

Your Honours have put to me.

The first is that the argument that

Your Honour is suggesting is a possibility is one that really would have been as open in Knight v

F.P. Special Assets because the issue there was a

really central issue, may costs be awarded against

someone who is not a party. Now, Your Honour,

involved in that was the underlying concept of what

was meant by costs and one might well say in such a

case one has to know what costs are to find an

answer to the particular question, and the more

limited answer appealed to Your Honour, not to the

other members of the Court.

McHUGH J: But Knight did not attempt to define costs as

such?

MR JACKSON:	No, Your Honour, I do not suggest that for a moment. All I am saying is that Knight provides a
statement by the Court, by members of the Court, that provisions of this kind should not be read down unless there is some, in the absence of an expressed ground for reading them down, unless some
good reason for doing so appears. That is the
first thing, Your Honour.

Cachia(2) 6 16/6/93

The second thing is, if one does take the

various elements of the definition of costs, the
various expressed elements of the definition of

costs, then the situation which obtains is that,

whilst one might as a grammarian perhaps complain

about saying remuneration is in the discretion of

the Court, that is not - conceptually, there is

nothing wrong with it because the remuneration is

indeed, if one looks at the scales for example,

remuneration is a matter of discretion -

McHUGH J:  But you ask whose remuneration ..... and what sort

of remuneration - - -

MR JACKSON:  Your Honour, what I am seeking to say is this:

we would not really quibble with the notion that
when what is spoken of is "remuneration", it is

perhaps appropriate to say that refers only to the

remuneration of persons who are legally qualified.

But the point I am seeking to make about it is

this, that one has a definition which goes beyond

the term "remuneration", for example, and contains

other notions which are not covered or necessarily

covered at all.

McHUGH J: Your point is that no limitation should be read

into the term "costs", but is it not rather a

question of looking at history to understand what

"costs" is intended to cover, but bearing in mind

the inclusive terms?

MR JACKSON:  Your Honour, I suppose it is a question of when

history relevantly starts in a way, but what

Your Honour says is right, of course, but with

respect, to some extent, and if one has a situation

where you have a provision of this kind coming into

being, then one should really start, we would

submit with respect, from the provision and see

what it says. Perhaps I should also say this: the

term "costs" does not appear to be a term which is

elsewhere relevantly defined except occasionally

one sees things saying costs includes, for example,

disbursements. But the term "costs" used in

section 76 is a term which is expressed to include

a number of things that would not ordinarily come

within the term "costs".

May I just give one example. One sees, for

example, in the reasons for judgment of

Sir Gordon Willmer in Buckland v watts in the Court

of Appeal that what he does do is draw a

distinction between disbursements and costs saying

costs, in effect, do not include disbursements.

The point I am seeking to make in answer to

Your Honour is this: that when one sees the term

"costs" defined in the way in which it is in

section 76 it is speaking of a concept which does

Cachia(2) 7 16/6/93

not reflect the general law view of what costs

might be.

The other thing is that it plainly includes things that would not be costs under the general

law, and true it is that some of the things

mentioned in it are things which are apposite, and
perhaps apposite only to the remuneration of
lawyers, but there are other items that are not,

and the term "costs" is not expressed to be

exhaustive.	I do not think I can take it beyond
that.

Your Honours, I was going to give one last

reference, if I might, to an observation in Knight

v FP Special Assets Limited, and that was to the

observations of Your Honour Justice Gaudron at

page 205. Your Honour's judgment was short in the

matter but Your Honour referred to the fact that

one should not read down a grant of power.

There are some further provisions to which

reference should be made. The first is to the

provision of the rules which deals with party and
party costs. That is Part 52 rule 23(2) at
page 3130 of Ritchie's book. Your Honours will see

that that provision refers to the taxation of party

and party costs. It performs a number of functions

which are material for present purposes.

The first is that it contains a requirement

that the costs allowed be "necessary or proper",

and that requirement, when read together with the

ability to require taxation by an independent

person acting judicially, defeats, in our

submission, any floodgates argument, that is an

argument to the effect that if a litigant in person

is allowed to obtain costs of the kind presently in

question, where will it all end?

Your Honours, the other side of the coin is

that on a party and party taxation, the terms of

the rules say that a litigant in person is, by

virtue of the rule, entitled to all such costs as

are necessary or proper for defending that person's

rights. Provided, of course, that the amounts

claimed are within the concept of costs, there is

an entitlement to them.

DAWSON J:  Is there any difference between t'rie costs of the

proceedings on a party and party basis and costs of

and incidental to the proceedings?

MR JACKSON:  My submission would be no, Your Honour,

although I have to say I have heard the other view put. If one is speaking of party and party costs,

party and party costs would ordinarily cover, we

Cachia(2) 16/6/93

would submit, both some time. I could not give

Your Honour a definite answer to it except in

respect of a particular matter perhaps.	Sometimes
it is done for - - -

MASON CJ: But it always was considered that there was a

difference between the two. Costs of and incident

to, as it used to be expressed in New South Wales,

was an order made in favour of trustees and was

understood to enable the trustees to recover more

than they would on a party and party basis.

MR JACKSON:  Your Honour, one is based a little on one's own

experience in these matters. I had myself heard an order in those terms made in circumstances where it

was done out of an abundance of caution - or

expressed to be done out of an abundance of

caution - without there being anyone passing on the

need to express it in that way. So, I do not want

to cavil with Your Honour, but it is - - -

MASON CJ:  I had not known that caution was a characteristic

of New South Wales judges compared with Queensland

judges, Mr Jackson.

MR JACKSON:	No, Your Honour, I really - - -
BRENNAN J:	Time and tide.
MR JACKSON:	I do not think I will enter into the topic, if

I may, with respect, decline to do so. I am sorry,

I have given a non-answer to what Your Honour asked

me, I think.

DAWSON J: There is something called "indemnity costs" in

rule 28A which seems to be something different

again.

MR JACKSON:  Yes. Your Honour, there has been, over years,

debate about the proper description of various

types of costs.	I would not attempt, at the
moment, to give the scale going up, but it seems to	start at party and party costs; go to solicitor and
client; then perhaps to solicitor and own client,
and then perhaps indemnity costs in addition to
that. Now, Your Honour, the - - -

DAWSON J: Then trustee costs comes in after that, and then

debit costs - yes.

MR JACKSON:  Yes. and party costs seems to be at the bottom and the Your Honour, suffice it to say that party

description of them seems to vary a little from

jurisdiction to jurisdiction.

TOOHEY J:  Mr Jackson, I am sorry to interrupt you, but did

you say there was a particular rule dealing with

Cachia(2) 9 16/6/93

unrepresented persons; or this was an inference you

were drawing from the existing rule?

MR JACKSON:  No, Your Honour, I am sorry, I did not. not say there was a particular rule. I did

What I am

going to say, Your Honour, is that looking at - the

relevant rule is rule 23(2), and it just sets out
the basic test in party and party costs. What I

will be saying is that when one sees how that is

worked out there is no especial difficulty in

applying the principle to unrepresented persons.

Your Honours, the general proposition is

rule 23(2). In taxing a bill the taxing officer is

not left entirely to guess at, as it were, the
levels appropriate and, Your Honours, in that

regard part 52, rule 67(1) provides that

Schedule G, to which I will come, is applicable.

Your Honours, that rule, rule 67, appears at

page 3146.

Your Honours, I was going to rule 67, which is

at page 3146. The point I am seeking to make is

this: whilst rule 23(2) sets out the broad

proposition on a party and party taxation, when

carrying out the taxation the taxing officer is not

left entirely without guidance as to amounts

because, in that regard, rule 67(1) provides that

Schedule G, to which I will come in just a moment,

is applicable.

Your Honours will see that that is set out in

rule 67(1) and then rule 67(2)(a) gives a power, in a special case, to allow items at the discretion- of the taxing officer in an amount higher than the

amounts prescribed by tables 1 and 2.

MASON CJ:  Mr Jackson, I have difficulty in - what page is

this?

MR JACKSON:	I am sorry, Your Honour, it is page 3146.
MASON CJ: Yes, I have got it now.
MR JACKSON:	Your Honours, what I was pointing to there was

the requirement of subrule (1) and then the power
to allow a higher amount pursuant to rule 67(2)(b).

Now, Your Honours, Schedule G contains within it a large number of items which may be related to

work which may be carried out in fact either by a

solicitor or by an unqualified employee of the

solicitor or by a litigant in person. I do not

know if Your Honours have the volume 2 of Ritchie

which would have a Schedule Gin. If Your Honours

do not, we have provided copies of the relevant

part to Your Honours' tipstaves.

Cachia(2) 10 16/6/93

BRENNAN J: What page is it, Mr Jackson?

MR JACKSON:  It is page 6253. Now, what Your Honours will

see is that if one looks at the scale set out on

pages numbered 6254 and 6255 through to 6257, that

sets out the scale which was in force up to

30 April 1992 as appears from the top of column 2

on each page. I should say, Your Honours, after

that a new scale came into effect which is on

pages 6258 and 6259.

Could I just go back to the earlier scale and

Your Honours will see that it lists a number of items which, as I said, are in large measure

matters which could be done by a solicitor

personally, by an unqualified employee of a

solicitor or by a litigant in person.

Could I refer, for example, to items 22, 23,

35 and 36 which contain specific reference to the

fact that the work may be carried out by an

unqualified clerk.	Now, Your Honours, if I could
just pause there for a moment.	What Your Honours

will see from that scale is that where work is

carried out by a person who is not qualified but is

an employee of the solicitor, then the taxing

officer has a discretion.

Putting it broadly, what Your Honours will see

is the terms of Schedule G provide a guide which

could be used by a taxing officer in fixing amounts

in respect of a litigant in person in respect of

particular items which are apposite to the case to

the instance of a litigant in person.

Your Honours, the new scale is generally

similar. It is a simplified version containing

fewer items. Could I refer, at page 6259 to, for

example, item 8 which speaks of time reasonably

spent by a clerk on work other than work referred

to in items 1 to 6, per six minute unit, and what

Your Honours will see is that that really assumes	that some of the work referred to in items 1 to 6
themselves might also be done by an unqualified
person as, indeed, is pretty apparent if one looks,
for example, at item 4(a).

Now, Your Honours, I do not wish to convey the

impression that I am suggesting tha~ the amount

referred to in those scales as the amount in
respect of an unqualified person is the right

amount in respect of a litigant in person, nor does

it necessarily follow that the amount for a

solicitor to do it is the right amount, or any

particular sum is the right amount. The point I am

seeking to make is simply is, that if one looks at

those scales they do provide a basic guide for a

Cachia(2) 11 16/6/93

taxing officer in the calculation of the costs of a

litigant in person.

BRENNAN J:  I see this is determined by the Legal Fees and

Costs Board. Is that a statutory instrumentality?

MR JACKSON:  Your Honour, it is, I think. I cannot give

Your Honour the name of the statute just at the
moment - the Legal Profession Act, my learned

friend says, and I think that is my recollection of

it also.

BRENNAN J: That statute throws no light on the present

debate.

MR JACKSON:  Your Honour, I think not. It determines, no

doubt, as one might expect, the fees payable are

fees payable to lawyers including circumstances

such as those referred to in the schedule.

DAWSON J:  Mr Jackson, your client appeared in this Court

for himself in person?

MR JACKSON:  Yes.

DAWSON J: There is no claim for the time spent in

presenting his case?

MR JACKSON:  Your Honour, he has got a claim Your Honour

will see - if I could go to page 3, there is a

claim, item 25, a claim not now in issue, then

item 24 where his sum was taxed off, the item

there. Then item 27, he has got an item for.

preparation for hearing, then, Your Honour, item 28

is an item for attending the hearing. Some of that

was taxed off. It and item 24 appear in a similar

category.

MR JACKSON:  Your Honour will see, for example, item 31 he

gets, for example, nothing for going to court to
get judgment. One sees, for example - I will come

to some of these items in a little more detail

later but he gets, for example, nothing for item 3

for the time it took him to draw his own notice of

appearance, and I referred earlier to items 9 to

13.

That brings me to the last statutory provision

to which I wish to refer.	It is section 5 of the
Law Reform (Law and Equity) Act 1972.	It is the

provision which says, in respect of New South

Wales, that:

In all matters in which there was immediately before the commencement of the Act or is any conflict or variance between the rules of equity and the rules of common law relating to

Cachia(2) 12 16/6/93

the same matter, the rules of equity shall

prevail.

It was earlier to be found in section 64 of the

Supreme Court Act 1970 but it is now in the Law

Reform Act to which I refer.

Your Honours, the relevance of that provision

is that the judgments in the Court of Appeal seem to

have found themselves on a common law view of costs

without directing attention to a rather broader

approach which was taken in equity. By a broader

approach being taken in equity I meant two things:
the first is that, at common law, the power to award
costs was entirely statutory but in equity the power

was not statutory, it derived from the chancellor's

discretion and was significantly wider.

The second feature is that in consequence of provisions such as section 5 of the Law Reform (Law

and Equity) Act 1972 to which I referred, the

equitable view of costs rather than the common law

view is the one which should prevail.

Your Honours, may I go to the decisions which,

in our submission, make out the two points to which

I have just referred. The first issue, namely the

different bases for cost at common law and in

equity, was adverted by members of the Court in

Knight and F.P. Special Assets Limited, 174 CLR.

Could I refer Your Honours to page 182 in the joint judgment of Your Honour the Chief Justice and

Justice Deane, at about point 6, in a passage which goes through to page 183 about point 2.

Your Honours refer to the marked differences,

the absence of inherent jurisdiction at common law

and then the quotation from Garnett v Bradley and

at the top of the next page, after that quotation,

the position in equity and Your Honours will see

the words, "the measure and extent of the costs".

McHUGH J: But was there any difference in the rule, which

is a fundamental rule, that costs were an indemnity

and the rule is usually expressed in the terms that

costs are an indemnity for payments made by a

party. It is for that reason, among others,

basically for that reason, that you cannot recover

counsel's fees on taxation unless the solicitor has

already paid the fees.

MR JACKSON:  Your Honour, the expression "costs are an

indemnity" is certainly one that is used, but

whilst one finds it used frequently, if I can say

this, it seems to be used in the context of common

law cases. One does no doubt see the expression.

I suppose if one combed through cases in equity,

Cachia(2) 13 16/6/93

one might find the expression used there, but the

meaning of the concept "costs are an indemnity"

does not - and I will take Your Honours to a

passage or two in just a moment - seem limited to

costs which are moneys expended, for example.

If one takes the case of the solicitor

litigant in person in respect of whom Chorley's
case, to which I will come shortly, says that the

lawyer litigant in person is entitled to in effect

the costs he would obtain if he were acting for

someone else, leaving aside some duplication that

one cannot have, that seems to encompass things

that one could not really regard as other than an

expenditure of his own time.

McHUGH J:	I appreciate that, and that rule has always been regarded as anomalous, has it not?
MR JACKSON:	It is a question, Your Honour, whether it is really in effect the tip of the iceberg or the bad
apple that should be knocked off. But the reasoning that supports its existence, in our
submission, supports the making of an allowance in
respect of the litigant in person.
McHUGH J:	But is there any rule or case that holds that a

litigant is entitled to be remunerated for the time

that he spends just attending court?

MR JACKSON:  The answer is yes, Your Honour. It is put in

different ways. I intend to come to a number of

the cases, but it is right to say that, generally

speaking, a litigant has not been allowed to obtain

a sum of money which reflects the litigant's time

spent on the case. There are considerable

exceptions to that, but that is the general

proposition that seems to have been adopted. The

point we are seeking to make is that the principle

adopting that is one which is wrong and which does

not really have a substantial conceptual basis. It

is one which should not be adopted by the Court

now, and that is what I am seeking to make out

today.

I was going to take Your Honours to the second passage in Knight v FP Special Assets Limited,

(1992) 174 CLR at page 193, Your Honour

Justice Dawson in a passage which commences at

about point 8, the paragraph commencing, "The power

to award costs is now statutory", and it goes
through to the next page at about point 3 where

Your Honour refers to the width of the power in

Chancery and the fact that it was exercised by

reference to conscience.

Cachia(2) 14 16/6/93

Your Honours will have seen a reference in

those passages to a decision of the Court of Appeal

in Andrews v Barnes, (1888) 39 Ch D 133. That

case, in addition to stating the broad proposition
that the source of the power to award costs in
equity was different from that obtaining at common

law also contained indications that the limitation

on it was founded on the exercise of a good, as it

were, discretion.

Could I take Your Honours to page 138 in

39 Chancery Division. The passage commences on the

fourth line on page 138. Your Honours will see a

reference to Jones v Coxeter:

"The giving of costs in equity is entirely

discretionary, and is not at all conformable

to the rule at law. "

Your Honours will see in the remainder of that

paragraph the passage, part of which was extracted

by Your Honour Justice Dawson. If I could invite

Your Honours to read the remainder of that page and

through to half-way down the next page,

Your Honours will see a very broad power to award

costs and a very broad power to determine what will

be costs was given in equity.

I do not want to dwell on that unduly, but may I say that the issue was dealt with also by the

House of Lords in Garnett & Bradley, (1878) 3 App

Cas 944, and at the bottom of page 953

Lord Hatherley dealt with the different bases going

through to page 954 to the end of the long

paragraph on the page. May I refer also to

page 962, Lord Blackburn, commencing at about
point 4 and going to point 9. Could I also say

finally about that case that that was the decision

in which it was held that the effect of the

Judicature Act provisions was that the equitable

view of costs prevailed. That that is so, if I

could give Your Honours the particular places of

which you will find that said - page 958 point 5,

page 958 point 5 and 972 point 7.

Could I move then to the reasons adopted by

the majority in the Court of Appeal for arriving at

their decision in this case.

McHUGH J: Just before you do, can I just see how far this

will unsettle other rules. Now, the rule was that

the party who proceeded in forma pauperis could not

recover costs of solicitor or counsel. The

solicitor who was employed at a salary by a

litigant, was not entitled to recover the ordinary

costs, was he? And a solicitor who had agreed to

take a sum of money lower than ordinary, in that

Cachia(2) 15 16/6/93

case the litigant could not recover all his costs

either, could he?	He could only recover what he
was liable to pay.

Now, all those cases, as I understand it, were

based on the principle that costs are an indemnity

in respect of moneys paid or liable to be paid.

That is the basic rule, unless there are exceptions

to it made either by statue or by rule.

MR JACKSON:  Your Honour, the first of them, the forma

pauperis, really seemed to be a charitable

exception in sense in the days when charity adopted

different forms from those one more commonly sees

today. It seemed to be an exception, not, in our

submission, with a particular underlying philosophy
behind it but simply a provision which enabled a

person who might otherwise have a legitimate case

to bring a case in circumstances where one of the

prices, as it were, for being able to do that and

in a sense being assisted in doing it, was that it

was regarded as something that was fundamentally

charitable.

Your Honour, that is the first thing. As to

the second item, namely, I think, the case of the

salaried employee - - -

McHUGH J: A solicitor employed as salary by a local

government authority, for example, now - - -

MR JACKSON: With respect, I am not certain that the law was

as Your Honour stated. Certainly there were some
cases where the view was taken that in some

circumstances nothing could be obtained in respect

of a salaried employee. That seems to have been

altered by statute, at .. least in New South Wales.

In some cases the view seemed to have been taken -

and, Your Honour, I am afraid I am speaking from

recollection in this regard - that the costs were

recoverable by the employer but it depended who the

employer was. Now, if one took the case that one

commonly saw of Crown employees being engaged as

solicitors, then the Crown was entitled to recover

the costs of the action and not just the amount of

their salaries.

McHUGH J: Yes, but there was a case, I thought it was in

the last century or it might have been early this

century, where a solicitor was paid .. an annual

salary by some council in England and it was then

held that the council, as a successful litigant,

was not entitled to recover any costs or if it was

there was just some tiny fraction of costs.

Cachia(2)	16	16/6/93
MR JACKSON:	Yes.	Your Honour, the position may be

different between counsel and solicitor in that

regard. Your Honour, may I perhaps see if I can

deal with the matter later?

MCHUGH J: Yes.

MR JACKSON:  Your Honour, as to the third category - I am

sorry I forgot which it was, it was - - -

McHUGH J:  I think it was the case of the solicitor who

agreed to take an amount of money below the

ordinary professional costs. In that case the

litigant is only entitled to recover in taxation on

the other side that amount costs, is it not?

MR JACKSON: Well, I suppose Your Honour, those are the

costs. No matter how one puts it - - -

McHUGH J: Yes, I know, but it is because the basic

principle is that the costs are an indemnity in

respect of moneys that you have paid or are liable

to pay.

MR JACKSON: Well, Your Honour, with respect, the basic

principle is that you are entitled to recover what

rule 23(2) says, that is the costs which are

necessary and proper. Now, in a case of that kind

costs above the agreed amount would not be proper

because - it might be all right to say, in one

sense, that is because they have not got to pay

them but, Your Honour, there seems no reason why

someone should have to pay someone else something

that they do not have to pay, have not lost and

there is really no reason to pay it. It is not

because of the underlying notion of indemnity,

indemnity being treated in that way.

Your Honours, I was going to go to the reasons

for judgment of the Court of Appeal and, as we set

out in our outline of submissions in paragraph 8,

there appear to be three underlying reasons.

Your Honours will see, if I can go to page 66 of

the record, at about point 6, the way in which

Mr Justice Handley sets out his reasons,

Your Honours will see he says:

The jurisdiction of the Supreme Court ..... is

wholly statutory.

He says, "Section 19 defines costs as including"the specified items, and then says:

In this definition fees, charges and

remuneration refer to remuneration for the

exercise of professional legal skill.

Cachia(2) 17 16/6/93

And then says:

The interpretation of such provision has been

settled for centuries.

And then he adopts what was said by

Mr Justice Samuels in an earlier decision of Cachia

v Isaacs. Your Honours will see that he does not

deal specifically with the remaining words, for

example the word "expenses", nor with the fact that

the definition is expressed in a non exhaustive

fashion. Now, Your Honours will see that he refers to the reasons of Mr Justice Samuels in the earlier case as· setting out the authorities which establish

that the interpretation has been settled for

centuries and, Your Honours, may I go to

His Honour's reasons for judgment in that case.

The decision, which Your Honours should have, is an

unreported decision of the Court of Appeal, given

on 23 March 1989. The relevant part - Your Honours

will see that it should have the reasons first of

the President, followed by the reasons of

Mr Justice Samuels, and the relevant part of his

reasons is at page 8 of his reasons. The

President's reasons go for, I think, 27 pages, and

then the numbering starts again. Your Honours will

see that the passage commences at page 8 at about
point 8, and it goes through initially to page 9,

at the end of that paragraph. Your Honours will
see the reference to the Statute of Gloucester, an

observation by Lord Coke, and I do not know if

Your Honour Justice McHugh had adopted all of

Coke's institutes but perhaps that - the point

adopted in Jago seems to be a little remote from

the present topic. But His Honour goes on to say:

That statement has been consistently

reaffirmed since at least 1852 -

and you will see that he refers there to three

cases.	Your Honours, may I go, and I will do so
very briefly, to the first two decisions which are
relied on for that reaffirmation.	The first is

Howes v Barber, (1852) 18 QB 588, in 118 ER 222. Your Honours, the case related to the costs of

a sea captain who had sued successfully for wages.

He was not suing, as far as one can tell, as a

litigant in person, he was represented. It had

been necessary for him to remain in·England

unemployed, and solely for the purpose of giving

evidence for a period of some four months. He was

a material and a necessary witness and he claimed

costs in respect of what was described in the

report as the period of detention, while he waited

to give evidence. Now the master gave him an

allowance in respect of that period. That appears

Cachia(2) 18 16/6/93

at page 222, at about point 8 - I am using the

English Report reference.

"The way in which the Master" - I am sorry.

Your Honours will see at about point 8:

The allowance was resisted on several

grounds -

including -

"that a plaintiff cannot be allowed for his

loss of time, but for his necessary expences

in attending the trial, only~".

Your Honours will see at the bottom of the page in

the footnote that:

The Master (Turner) informed the Court that he

made the allowance not for loss of time but as subsistence money according to the plaintiff's condition in life, as master of a merchant

vessel trading to foreign countries.

Your Honours, could I just pause to say that the

expression "subsistence money" there is used in the
second case, Dowdell, but it seems in the latter
case to be used as something which would cover the
loss of ability to earn income as distinct from the
ordinary meaning of the term, or the first meaning
of the term, which one might think referred to the

costs of remaining there pending the trial. So,

Your Honours, the term "subsistence money" - and

Lord Campbell was the judge presiding in each

case - seems to have a term beyond just the costs.

The only referenc~ in the case to the Statute

of Gloucester is to be found, not in any of the

reasons for judgment, but in the argument of

counsel who was opposing the allowance. That

appears at page 223, about half-way down the page.

Then Your Honours will see, at about point 7 on the page, Lord Campbell, delivering the judgment of the	court, and this was a case which occurred after the
plaintiff became able to give evidence on his own
account. Your Honours will see in the penultimate paragraph on the page:

The reasonable expences to which the

plaintiff is put by being obliged to attend
and be examined as a witness to enforce

payment of a just demand, or to seek redress

for an injury, should be thrown on the wrong

doer. Again, if an unfounded action is

brought, and the evidence of the party

improperly sued is necessary for his defence,

Cachia(2) 19 16/6/93

he is not indemnified if his own expences as a

witness are not allowed to him. At the top of the next page Your Honours will see a

reference to Berry v Pratt and, in the third line:

the Legislature having been pleased to permit

the parties to be examined in their own

behalf, we cannot say that the expence of the successful party ..... should not fall upon the
party who, resisting a legal demand, or making

an unlawful one, has caused this necessity.

Your Honours will see in the next sentence a

reference to the:

analogous case of an indictment removed ..... it

has been usual to allow his expenses, though
not to make him any compensation for loss of

time.

If I could just say, what seems to be spoken of

there is a manner of exercise of discretion rather

than anything else and that that is so appears also

from the next paragraph where they say that we have

to look to the taxing officers to see that there

are not attempts to:

swell costs unnecessarily.

BRENNAN J: But these are all witnesses' expenses, are they

not?

MR JACKSON:  Yes, Your Honour. It is right to say that in

one sense, but it is also correct to say that they are witnesses' expenses of a person who is a party

to the action.

BRENNAN J: But is not that third line on page 224

indicative of the character in which the payments

are made, namely in the character of witnesses?

MR JACKSON:  That is so, Your Honour, but if one goes down

three further lines, you will see that the other

aspect of it is referred to, and that is:

the party who, resisting a legal demand, or

making an unlawful one, has caused this

necessity.

The point I am seeking - - -

BRENNAN J: The necessity is the necessity of examination as

a witness.

MR JACKSON:  Of course, Your Honour, I accept that. But the point I am seeking to make about it is that so far

Cachia(2) 20 16/6/93

as one can identify something underlying the

notion, what is underlying it is the notion that

expense has been caused to the person by the making
of the demand which has been unsuccessful or the

resistance which has been unsuccessful. There is

no reason, we would submit, in principle, except

for the making of a somewhat arbitrary distinction,

to say that costs incurred in defending the action

where the person is representing himself - a case

different from this, of course - are not costs

which are equally brought about by the same

factors.

Your Honours, could I just say also that in

one of the cases to which I will come, which is a

decision of Mr Justice Helsham, in Australian Blue

Metal Ltd v Hughes, what was done was to allow the

expenses of defendants attending the trial, they

being persons who were not there in effect to give

evidence; they gave no evidence.	I will come to
that in a moment.

BRENNAN J: It is the fact, is it not, that Schedule G

provides for allowances of witnesses, including

expenses and sustenance?

MR JACKSON: 

Yes, Your Honour.

BRENNAN J: 

So there is no textual distinction between the

provisions of table 3 dealing with allowances to
witnesses and the case to which you have drawn our

attention.

MR JACKSON: 

I am sorry, I did not have - - -

BRENNAN J: Table 3, page 6275 and following pages. It

seemed to me that Amott v Holden was completely

reproduced in table 3 ..... Howes v Barber.

MR JACKSON:	In the sense that the allowances to witnesses are provided for by table G. That is essentially
what it says.

But if one goes to other parts of table G and,

in particular, Your Honour, if one goes, for

example, to item 31 in pre-April 1992, you see for
example, item 31 referring to an unqualified clerk

attending to instruct counsel at a hearing obtains

a certain amount. Now, Your Honour, if one has a

situation where unqualified persons-are in the

service of solicitors are to be allowed particular

sums, or are to be allowed some, it seems very
difficult, we would submit, to draw a very good

distinction between that and circumstances where a

person who is the party and who chooses to

represent themselves, obtains nothing for the fact

Cachia(2) 21 16/6/93

that they, in effect, caused lower costs by them

handling the matter themselves.

BRENNAN J:  I do not know that it is very conclusive but

there is a special scale, is there not, for

solicitors who act for themselves? In other words,
there is provision made for solicitors acting

generally and then provision made for solicitors

acting for themselves.

MR JACKSON:  I do not know. Your Honour, I have seen such

scales, can I put it that way?

BRENNAN J: Well, there is one instance at page 6265,

item (a) on that page of fixed costs. It appears

elsewhere. If I remember my flicking through of

these pages correctly, it appears in a number of

places.

MR JACKSON:  Yes, Your Honour, that is so in respect of some

proceedings, yes.

BRENNAN J:  It is not conclusive. I am not suggesting it is

conclusive, Mr Jackson, it just an indicator.

MR JACKSON:  No, Your Honour, it is a provision that is

there but it may also to, in a sense, mitigate

against the rule that a solicitor acting for

himself can recover costs. Perhaps, put it into a

fixed focus.

Your Honours, if I could move from that to the

second case, and that is Dowdell v The Australian

Royal Mail Steam Navigation Company, (1854)

118 ER 1379. Again, the plaintiff was a necessary

witness in his own cause. H had succeeded at the trial, but the defendant had obtained a rule nisi

for a new trial. The rule nisi was discharged but

the plaintiff was allowed costs for the period, during which he remained in England pending the discharge of the rule nisi.

Your Honours will see that at the top of

page 1380, his:

occupation was that of purser on board ship.

Then, at the bottom of that page, Lord Campbell

sets out the circumstances of the case. Then at

the top of page 1381 says, at about·the third and
fourth lines:

And that his remaining here deprived him of his ordinary means of earning subsistence by

going abroad, and that he could not earn

anything here. Under these circumstances, we

think that this was an expense occasioned by

Cachia(2) 22 16/6/93

the defendants resistance, and that it may

properly be considered part of the cost of the

rule for a new trial.

Your Honours will see three more lines down

that he was deprived of the means of subsistence.

So that Your Honours will see that the basis for

granting the allowance was that he was required to

remain for the purposes of the case and being

required to remain for the purpose of the case was

deprived of his means of earning income and that is

described, of course, as an expense.

Now, Your Honours, the case, as

Your Honour Justice Brennan put to me before, is

one dealing, of course, with the witness' expenses

of a person who is the plaintiff in proceedings but

·it is plain enough from what is there said that the

concept of subsistence did not relate to the costs

of maintaining himself while he was there but to

the loss occasioned by having to be there.

BRENNAN J: What do you make of the sentence which straddles

page 906?

MR JACKSON: Straddles the number 906?

BRENNAN J: Yes.

MR JACKSON: Well, not a lot Your Honour. What I mean by

that is this: it is plain, we would submit, that

what His Lordship is there saying:

an abuse by which parties in a cause may, as

witnesses, obtain an allowance which they are

not entitled to as parties.

But, Your Honour, there is no basis for that

demonstrated, in our submission, and it certainly
does not appear as any reliance upon the Statute of

Gloucester or anything of that kind, or the cases

deriving from the Statute of Gloucester.

Your Honours, when he speaks of "an allowance to

which they are not entitled as parties", it is

difficult, with respect, to see why there is any

basis for drawing a distinction between the two

classes of allowance, if I could use that

expression.

Should I just say, Your Honours, and I put, perhaps, one other thing in relation to that, and

.

that is this: that when he is speaking of that he

is speaking, of course, not in the context of a

litigant in person and, Your Honour, that is

perhaps the thing I should have said first. Both

these cases are the cases of someone who is a party

in proceedings and undoubtedly, one could say, you

Cachia(2) 23 16/6/93

cannot get this allowance as a party, you have got
lawyers doing all this work.

Your Honours, the case which, in our submission, is really the first case dealing with

the topic at all directly is the London Scottish

Benefit Society v Chorley. That was heard both in

the Divisional Court of the Queen's Bench Division

and was affirmed in the Court of Appeal. In the

Divisional Court, the report is (1884), 12 QBD 452.

The issue which was raised appears at page 452 in

the third and fourth paragraphs where the master

said:

it had always been the practice to allow to

solicitors - who were parties -

the usual party and party costs.

At page 454, about half-way through the page,

Mr Justice Denman said, in the fourth line of his

reasons for judgment:

the question has arisen ..... where a solicitor

sues or defrauds in person, he is entitled

only to such costs as any other defendant in

person would be entitled to, viz, the costs

out of pocket,

Now, Your Honours, that is undoubtedly a statement

that there was such a practice, and that he goes on

to the end of that paragraph. At page 454, the

same page, at the bottom of the page, going over to

about point 3 on page 455, he said the Judicature
Acts did not seem to affect the matter.

Your Honours, whilst the Judicature Act might not

have had a dramatic affect on it, it made the

source of the power to award costs somewhat

different.

Your Honours, the observation which he makes

on the same page, page 455, if one goes through

from about point 4 through to about the bottom of

the page, are, in our submission, equally apposite

to non-lawyer litigants in person.

Could I take Your Honours to a number of the

particular observations which he makes. The first

is about half-way down the page where he says:

I am not aware of any principle which ought to

prevent a successful party who is a solicitor,

and who does solicitor's work, from being

indemnified not merely for the time he must

necessarily expend as a witness in his own

Cachia(2) 24 16/6/93

case, but also for the pains, trouble and

skill which he has to incur and to exercise in

order to bring it to a successful conclusion.

He then refers in the next two sentences to the

fact that it does not have to be an outgoing for

there to be an indemnity. Your Honours, exactly

the same observations in relation to "pains,
trouble and skill" would apply, in our submission,

to any litigate in person.	The second thing is
that he goes on to say:

The solicitor's time is valuable: he applies

his skill to a suit or action -

Your Honours, he does say this: the observation

about time being valuable seems to apply equally to

anyone, and I will seek to develop that in just a

moment.

Your Honours will see at the bottom of the

page that he speaks of the so-called benefit that

might be obtained because the solicitor acts for
himself and it costs less. Again, the same

observation might be made in respect of a litigant

in person. Your Honours will see at·the top of the

next page in the first new paragraph that he speaks

of the cases on the position of solicitor parties

being not one hundred per cent clear.

Your Honours, Mr Justice Manisty, in the next reasons for judgment, says, essentially at page 456

from about point 8 through to page 457 about

point 7, his reason is simply, and Your Honours

will see on page 457 at about point 2:

The reason why costs are allowed to a

solicitor being a party, and not to another

person who is not a solicitor, is simply this,

that the one is a solicitor and the other is

not -

and he elaborates upon that through to the middle

of the page saying, amongst other things:

Time is money to a solicitor.

Your Honours, time, of course, is money to an

employee. Time is money to a self-employed person.

Time really is a commodity which an.unemployed

person is capable of using to seek employment or

for other pursuits. It is a commodity which a

retired person can use in pursuits of that person's

own choosing. Of course, a non-lawyer litigant in

person cannot recover those costs which are

appropriate only to a lawyer, but that does not

mean, in our submission, that a blanket prohibition

Cachia(2) 25 16/6/93

on all except outgoings should be the necessary

consequence.

Mr Justice Watkin Williams commenced his

reasons relevantly at the bottom of page 458,

listed the various statutes, and then at the bottom

of page 459 to the top of page 460 elaborates upon

them; and then at about point 3 on page 460 he

said:

It seems to me that the word "costs", though a

technical term now, may very well have been used to include, not merely money expended,

but any real expenditure, whether of time or
money, incurred by the party in defending

himself against an unjust claim -

and Your Honours will see he elaborates upon that

point a little further down.

Your Honours, the expression which he uses,

though a technical term now, cannot, in our

submission, override the definition in section 19

which includes things like expenses. In the Court

of Appeal a similar conclusion was arrived at.

That is in 13 QBD.

MASON CJ:  Is it necessary to go through it in detail,

Mr Jackson? It is summarized and the excerpts are

set out in the judgment of Mr Justice Samuels.

MR JACKSON:  Your Honour, what I wanted to do was to take

Your Honours to a particular observation in it and

then to say in relation to the others, the

submissions that we wanted to make are set out in

our written submissions, which is the reason for

extracting those parag·raphs.

The place I was going to take Your Honours was

at page 875 and you will see there, at about

point 4, the reference to: 

there cannot be a perfect indemnity, because

it is impossible to determine how much of the

costs is incurred through his own
over-anxiety.

Your Honours, the reference to that and the

reference to the impossibility of determining how

much of the costs is due to that, we would submit,

is really extraordinary in a way because there is a

taxing officer; why cannot the taxing officer

determine what is necessary or proper.

A similar observation appears to be made at

page 877, about point 4, by Lord Justice Bowen,

where he says:

Cachia(2) 26 16/6/93

Professional skill and labour are recognised

and can be measured by the law; private

expenditure of labour and trouble by a layman

cannot be measured.

The fact of the matter, Your Honours, we would

submit, is that a solicitor may behave in exactly

the same way, and it is an every day occurrence for

taxing officers to make an appropriate adjustment.

Your Honours, could I in that regard refer

Your Honours to an observation in an article in the

33 Modern Law Review 214 at page 215, the article

being "Costs and the Do-It-Yourself Litigant".	On
page 215, at about point 3, quoting from
Lord Justice Bowen, the author says, in our
submission correctly:

Some solicitors take too much trouble, and

·others very little; it is an everyday task on

taxation of costs to allow a reasonable sum

for the labour involved.

Your Honours, could I go then to paragraphs 12

to 14 of our outline of submissions, where

Your Honours will see the other reasons, or the

reasons adopted by the members of the Court of

Appeal, are extracted, or a passage from it

extracted, and our submissions in relation to them

are there set out.

Your Honours, in particular

Lord Justice Bowen's reasons for judgment in ef!ect

start from high principle but they end, in a sense,

with the abacus, because he comes in the end to
saying that the case has to be dealt with and that

solicitor's costs can be quantified because they

are, in effect, known to the law.

The points which we seek to make in relation to those passages are set out in paragraphs 12 to

15, and may I refer Your Honours also to

paragraph 16 where one sensibly set out some

factors which are germane.

Your Honours, what appears then to have become

the central basis, or appears to have been treated

as being the principal basis of Charley's case is

referred to in the passage which w~ have extracted

at paragraph 17 of the outline of submissions, and

that essentially comes down to the ability to

measure professional skill and labour by the law

but one cannot measure private expenditure

similarly.

Your Honours will see that that passage was

adopted by the Court of Appeal in both

Cachia(2) 27 16/6/93

Buckland v Watts and by three members of the Court

in Guss v Veenhuizen (No 2). The submission which

we would then proceed to make is that the inability

to calculate is one which really cannot, in our

submission, be supported. In that regard, may I

take Your Honours very briefly to the observation

of Mr Justice Cole in Sandtara v Austn European

Finance Corp, 20 NSWLR 82 at page 93, and
Your Honours will see at the bottom of the page

His Honour's observation that he could:

see no reason why the law cannot make any

proper assessment of costs properly or

reasonably incurred by laymen or corporations:

it is done daily in construction litigation.

And then refers to the fact that such costs are not

immeasurable. We have given a number of other

references in paragraph 19 to circumstances in

which the courts or taxing officers do fix the
charges. I will not take Your Honours to the two
provisions of the Court's rules that are referred

to there, but they deal with the fixing of the

charges of court experts.

Your Honours will have the provisions of

appendix B of chapter 1 to the Rules of the Supreme

Court of Victoria which deal with witnesses' expenses, and they provide for - they are to be

amounts lost by attendances. For example, in the

case of 3:

Any other witness ..... per day, $56.

But if the witness is remunerated in any

employment by wages, salary or fees ..... the

amount lost by the attendance, but not -

to exceed so much.	Then other expenses are to be
allowed.

Your Honours, we have given a reference to other scales of allowances, but could I refer

particularly to, for example, the practice note

No 2 of 1991 of the Victorian Supreme Court which

is - they have given a wrong reference, I think.

It should be (1991) 2 VR 71, rather than 63, in

paragraph 19, but what it sets out, for example, is

circumstances where the court fixes the

remuneration of liquidators, receivers, all their

staff right down to seniors, typist~ and juniors

and so on. The point that I am simply seeking to

make is that there is no immediate difficulty seen

in a court fixing items of that kind.

Similarly, Your Honours, if one looks at the

instances referred to in paragraph 20, Reed v Gray,
(1952) 1 Ch 337, is a case where, in dealing with

Cachia(2) 28 16/6/93

witnesses' expenses, Mr Justice Roxburgh objected

to the view that a sum could not be allowed unless

some expenditure were demonstrated. The passage

commences relevantly at page 357 in the last

paragraph on the page.	It goes through to page 358
at about point 7.	Your Honours will see in

particular at page 358 at about point 6 that he

declined to adopt the view:

that a wife who is engaged in domestic

duties ..... is entitled to absolutely nothing

at all because she cannot prove that she did

in fact get in a charwoman -

or something of that kind.

Your Honours, without going to the detail of

the two cases referred to in paragraph 20, two
other cases, Australian Blue Metal Ltd v Hughes and

Kerridge v Foley, both those are cases where the ability was recognized for there to be an allowance

in respect of costs other than outgoings, and it is

particularly so in the case of Australian Blue

Metal Ltd v Hughes where the three persons were

persons who were given an allowance for attending

the trial. In the Law Reform Committee of South

Australia, in their report relating to the award of costs to a litigant in person, Your Honours will

see at page 5 of it, that, in the paragraph in the

middle of the page, the members of the committee

rejected the notion that such costs were

immeasurable.

TOOHEY J:  I suppose you could test it in part by looking at

the position of the appellant, who is an engineer,

if he had been called as an expert witness in some
other litigation. Many of the items that are the

subjects of dispute are items which might arise, such as the perusing of documents, and so on, if

the witness were called as an expert.

MR JACKSON:

Yes.

TOOHEY J: That goes to the argument again based on

quantification. It does not touch the question of

principle.

MR JACKSON:  Yes. Your Honour, the point we would seek to

make about it is this. There is really no

underlying justification for drawing the

distinction and to the extent to which it is
expressed to be dependant upon the inability to

quantify, that is a proposition which simply cannot

be sustained.

Your Honours, in relation to paragraph 21 of

our submissions, might we say this:

Cachia(2) 29 16/6/93

Mr Justice Handley, at page 67, expressed a view - and Your Honours will see it in the first new paragraph on that page - which concluded with the

observation that:

The taxation of costs is ordinarily an

accounting assessment.

And that if there were claims of this kind they,<

"would frequently involve disputed questions of

fact". Now, His Honour, we do not think, is saying

that the taxing officer cannot decide them, but

that they would give rise to those problems. But

if he were saying that he cannot decide them or

should not have to decide them, well then, of
course, it is an issue that frequently does arise

before taxing officers, to determine what the

appropriate amount is, and there may be evidence

called.

Your Honours will see that the taxing officer

has powers given by Part 52, rule 37 which allow

the taxing officer to take evidence and so on and

direct production of documents and do, in effect,

whatever is necessary in the taxation. We would

refer to the decision of Brown v The Great Western

Railway Company, 3 TLR 582, referred to in

paragraph 21, where the very reason for setting

aside the taxing officer's decision was that he had

not allowed cross-examination.	The taxing officer
had said:

It was only oath against oath,

and he was not going to decide it. Your Honours

will see Lord Coleridge, in the right column,

saying that he should have allowed cross-

examination.

Now, Your Honours, a further matter which I

should mention before going on with our submissions

is this.	I referred earlier to an observation of
Sir Gordon Willmer in Buckland v Watts, (1970)
1 QB 27.	The particular observation to which I

referred one of Your Honours before is at page 37,
and Your Honours will see in the paragraph

commencing between F and G that he there draws the

distinction between costs and disbursements. One

heading covers disbursements, the other heading is

described as costs.

This is intended to cover remuneration for the

exercise of professional legal skill.

Your Honours, the definition in section 19(1), in

this case, would really have led to a different

Cachia(2) 30 16/6/93

conclusion because the definition of costs includes

disbursements.

Your Honours will see, at the next page, that

he draws a distinction between legal professional

skills and other skills. Your Honours, the

difference, while it exists, should not, in our submission, be over-emphasized. There are many

things which a litigant in person must do and

which, equally, may be done by a lawyer, if one is

engaged.

In-that regard, could I take Your Honours to

the bill of costs, at page 2 and refer to items 9,

10, 11 and 12, and 21, 22 and 23 as all being items

which a litigant in person would have to do,

appearing for himself, and which a lawyer would

have to do if he engaged a lawyer.

Your Honours, so far as the Court's decision

in Guss v Veenhuizen (No. 2), (1976) 136 CLR 47, is

concerned, it seems clear enough that the basis

adopted by the three members of the Court who

decided the issue, that is Acting Chief Justice

Gibbs and Justices Jacobs and Aickin, was on the

basis of the ability to calculate. That that is so

appears at page 51 at about point 4, and also at

page 52 at about point 7.

Now, Your Honours, that was a case in which it

was held that a person who was not a practitioner
was yet entitled to the benefit of the rule in

favour of solicitors.

Your Honours, could I move then to

paragraph 22 of our outline of submissions. What
we would submit is that the approach taken in

favour of lawyer litigants in person is one which

essentially is the conferring of a privilege upon

legal practitioners which is, for the reasons which

are set out by Mr Justice Kirby in his reasons for

judgment in this case, discriminatory against

persons who are not lawyers, but it is a

discrimination which should not be maintained

unless there is a valid reason for doing it.

MASON CJ:  Mr Jackson, I was going to ask you about Guss v

Veenhuizen.	What was the actual issue which was
taken before the Court in that case?	. .

MR JACKSON:  The actual issue that the Court decided in that

case appears to have been not that a litigant in

person could not recover costs but that a person

who was a lawyer, though not a lawyer of the court,

was entitled to recover profit costs, in effect.

Cachia(2) 31 16/6/93

MASON CJ: In other words, the issue was not as to this

principle that had been established in previous

cases relating to a solicitor's right to recover

costs when he was appearing in person, but whether

that rule applied to a person in the position of

the appellant who was not entitled to practice in

accordance with the Judiciary Act because, by
reason of the Registrar's error, his name had been

omitted from the register.

MR JACKSON:  Your Honour, it appears - the case has a

difficulty in a way, but in one sense perhaps one

way for arriving at a different basis for the view

adopted by the majority in the case is to say that

it really reflected the fact that the provision for

costs is a provision which now derives from, in a

sense, the equitable base in the sense I was using

it before, .and it was for the court to be able to

determine the persons to whom and by whom costs

should be paid and the measure of them.

Your Honour, I should say there is an earlier,

I think Victorian, case, and I will give

Your Honours a reference in a moment, in which a

practitioner who did not have a practising

certificate was held entitled to the benefit of

that rule.

McHUGH J: Well, in New South Wales Bar Association v Evatt,

if my recollection is right, the Bar Association

was unable to recover its costs in this Court

because the solicitor on the record for the Bar

Association was not registered as a practitioner in

this Court.

MR JACKSON:  Your Honour, that I suspect was before Guss v

veenhuizen.

McHUGH J: It would have been 1967.

MR JACKSON:  Yes, well, Your Honour, it is amazing, in a

sense, that the adventurism that one might expect

from that body was not taken into account and - - -

McHUGH J:  I could be wrong. That is my recollection.

MR JACKSON:  Your Honour, I do not know that there is much I

can say about it really except that perhaps they

should have.

MCHUGH J:  I might check it.

MR JACKSON:	Perhaps they were unduly timidly advised. point I was seeking to make then was that if one	The
goes to the reasons for judgment of

Mr Justice Kirby in this case and to the passage referred to at the top of page 10 of our written

Cachia(2) 32 16/6/93

submissions, page 54 at about point 7 going through

a couple of pages through to page 57 at about

point 5, we would submit it is correct to say that
the practice presently adopted is one which is

discriminatory and one which should not be

countenanced for the future and that there is no

very good reason for its existence. Everyone who

is a litigant in person, be they a solicitor or

not, is obliged to spend time in dealing with the
case.

Your Honours, I have already dealt, I think, with what is set out in paragraphs 23 and 24 of our

written submissions. Could I say that if one looks

at the cases which are referred to in paragraph 25,

they seem to be the instances which are the cases

in Australia that we have been able to see where

decisions of the various courts have been based on

the assumption that there is essentially a rule in
favour of solicitors, sometimes carrying with it
the implication that there is also a rule which has

another side, and that is the rule against the

private litigants.

But, Your Honours, on the other side, one does

see expressions of dissatisfaction with it. May I

take Your Honour to Secretary v Boswell, (1992)

111 ALR 553. In that case the Full Court of the

Federal Court dealt with an application for costs

by a litigant in person. Your Honours will see at

page 554 in the second paragraph that Their Honours

refer to this case and to Cachia v Isaacs and then

Your Honours will see the earlier decisions I

referred to and then Their Honours expressed their

view at page 557 at about line 28. They say:

the authorities.~ ... establish that a litigant

in person ..... may not receive any remuneration

for work done in the preparation of a case or

for appearing in court. But they also

establish that litigants in person are

entitled to recover their out of pocket

expenses.

And then they go on to say:

We can find nothing in the cases which obliges

this court to hold that a litigant in person

who has had to have time away from his or her

employment or business in order to prepare a

case or to attend court to present it should
not recover an indemnity for any loss of

earnings suffered in consequence.

They go on to elaborate upon that through that

paragraph and the next paragraph. Then,

Cachia(2) 33 16/6/93

Your Honours, at page 559 line 25 they say that

Guss v Veenhuizen:

is determinative of this matter.

Then they say at about line 32 they have sympathy for the respondent as Mr Justice Clarke

had in this case and the applicable principles are

those two decisions. They go on to say at about

line 42 that the Kerridge case -

remains authority for the proposition that a party, whether represented or not, who has a real need to be present in court throughout

the hearing, is entitled to recover at least

the out of pocket expenses (including loss of

earnings) incurred ..... That need will be more

easily established where a party is conducting

his or her own case.

Could I refer to the remainder of that page.

Their Honours go on to say in the first paragraph of the next page that -

no allowance can be made unless a real loss of

earnings is demonstrated.

Your Honours, in that regard, we would submit that

is an undue limitation upon the situation, and it

can lead to really erratic results, in a sense,

because if it be the position that there is a real

loss, in that sense it may be that the person is

someone who is employed on a very high income or a

very low income. It may be that they are a person
who is presently unemployed, and so for that they
get nothing. But at the same time, their
opportunities of looking for employment and perhaps

taking up employment that might have been offered

to them are reduced. They seem to be really in no

fundamentally different position from a person who

is a witness or a person who is, in a sense, a

juror. Their time is necessary; they have to deal

with the case; they have to be there; they are

perfectly entitled to be there and, Your Honours,

one should not, of course, treat litigants in

person as second class citizens. They are their

cases, after all. In those circumstances, we

would submit, it is not appropriate to limit it to

just what money might have been act~ally lost as

distinct from what might have been lost in terms of

loss of time, and I refer again to what was said by

Mr Justice Denman in the Queen's Bench Division in

Chorley's case.

TOOHEY J: Could I just ask you this, Mr Jackson, although

to some extent you have answered this question by

Cachia(2) 16/6/93

what you have just said: without in any way going

to the detail of the bill of costs, but trying to

identify the principle involved, are you saying

that costs should be taxed in a case such as this

by reference to the earning capacity of the

unrepresented litigant, by reference to the scale

of costs, to some combination of both or how is it

put?

MR JACKSON:  May I speak generally and then particularly?

Speaking generally, because the scale of costs has

two aspects which are relevant, one cannot say one

applies the scale of costs correctly. What I mean

by that is one aspect which is relevant is that it

does not, in terms, speak of persons who are

litigants in person. It speaks of unqualified

people in some respects, but speaking of them as

clerks. That is the first thing.

The second thing is that the ultimate test

would seem to be what costs are necessary or proper

in terms of the rule. Now, that means what one is

looking at is a circumstance where a person who is

a litigant in person is, by reason of involvement

in the litigation, obliged to spend their time in

conducting it, to put it loosely. What they should

obtain, Your Honour, is something in respect of

that time.

Now, the quantification of that may vary,

perhaps significantly, depending on the

circumstances of the person, and if one has someone

who is retired and really does nothing, then one is

speaking of their loss of ability of time to do

nothing, or if they prefer to play bowls, or

whatever it may be. If one is speaking of someone

who is unemployed, then again it may be more

difficult to quantify.

If one is speaking of someone who is

employed, or who has a capacity to earn income as,

say, a professional person or self-employed person,

it may be easy to quantify the loss brought about

by the loss of the capacity to do what one wants.

But, essentially, to answer Your Honour in a word,

it is really a loss of capacity. The way of

working it out would most often be, we would

submit, by looking to see what would be an

appropriate sum if the same thing w~re being done

by a solicitor and looking to see what the

appropriate comparison is.

Now, the appropriate comparison may be that

the person would receive less, the same as, or

perhaps a bit more, but it would in the end be a

matter of determining what was proper.

Cachia(2)	35	16/6/93
TOOHEY J: Yes, thank you.

MR JACKSON:  Your Honours, in relation to the application or

the question of the ef feet of Guss v. Veenhuizen,

may I refer Your Honours to paragraph 26 of our

outline of submissions. We submit that the case

does not itself decide the exact issue with which

the Court is now concerned, but if the Court were of a different view, then the decision should not

be followed. We set out the reasons therefore at

submission, and I will not recite them. May I also

say, Your Honours, that so far as that decision is

concerned, it is one, the basis for which, in so
far as it depends on the quantification basis, in

our respectful submission, is unsatisfactory.

Your Honours, the grant of special leave was

one which related to the question of travelling

expenses as well as compensation for loss of earnings and so on, but so far as travelling expenses are concerned they seem really, as a

discrete item, to relate to only two things, and

they are the two items to which I referred earlier,

items 31 and 44 where Your Honours will see two

small items listed as travelling expenses in each

case.

MCHUGH J: Yes.

MR JACKSON:  But involved within the larger sums in the

items is something in respect of travelling to

court for the purposes there specified. In

relation to travelling expenses, the decision of

the Court of Appeal really seems to have accepted

that travelling expenses could be recovered.	We
would give Your Honours a reference to page 76

point 2 through to page 77 at about point 9. It

would really only be in the case of the particular

expenses that if the subject matter to which they

are ancillary was treated as something that was

completely irrecoverable, that those two sums of

$9.16 could not be recovered.

Your Honours, could I just say one thing in

relation to the written submissions of Mr Cachia,

the lengthier version of them. Your Honours, the

matters that are referred to in paragraph 2.1 is

one that does not arise.	Your Honours, those are
our submissions.

McHUGH J: Before you sit down, that case I had in mind

about the council and the wages was Henderson v

Merthyr Tydfil Urban District Council, (1900)

1 QB 434. What it appears to decide is that if the

solicitor is paid a salary, and at least so long as

the costs recovered are less than the salary, then

you are entitled to recover costs in accordance

Cachia(2) 36 16/6/93

with the scale unless the contrary is proved to
show that the work you did is not the equivalent of

those costs.

MR JACKSON:	Yes.
MASON CJ:	Thank you, Mr Jackson. Mr Bennett.
MR BENNETT:	Your Honours, I hand up an outline of

submissions.

MASON CJ: Thank you. Yes, Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, we

commence with the policy considerations because

what the Court is being asked to do here, in

substance, is to overrule a long line of

authorities. I will have something to say about

the definition of costs in the Act in a moment, but

subject to that, my friend's submission is,

unashamedly, one which says that modern thinking

requires us to change what has been the law for a

long time.

We put these general policy considerations to

the Court. The first one is that one must be

conscious of precisely what one is doing. Rules of

court have been drafted; scales of fees have been

drafted on certain assumptions. Those rules

contain an enormous amount of detail. They provide to the cent how much a solicitor gets for reading a letter; how much is paid to his clerk for taking a

summons to court, and matters of that sort. One is

being asked to say that a whole new class of costs

should be allowed when there are no rules governing

those costs, and when the rules, by their very

exclusion of those items assume that they would not

be recoverable.

One is being asked, in other words, to

legislate in a situation where the legislation does

That is one of the principal reasons why this is a	not have the detail required to put it into effect.
case par excellence in which the Court should not
interfere. Let me take one very simple example. A
legislature or, for that matter, a group of judges
making rules of court, might well decide that in
laying down an appropriate scale for litigants in
person for certain types of work, it might say that
the litigant recovers the amount of ,income lost,
whether salary or professional income, or any other
type of income, or some other form of compensation for time, but that some form of cap is appropriate.
It would be inappropriate for the highly paid
executive, for example, to be entitled to a very substantial amount for his time while the lowlier paid person is not.

Cachia(2) 37 16/6/93

So, one thing one's mind would turn to, if one were legislating, is a cap. Now there is no way,

of course, this Court could do that. This Court ia

simply asked to lay down a rule in an area where

there are no rules, and that, in my respectful

submission, is singularly inappropriate.

If one looks at what the rules have done, one

sees again and again an assumption that this type

of cost is not recoverable. My learned friend took

Your Honours to Schedule Gin volume 2 of the

Supreme Court Practice. The very items to which my

learned. friend refers in Schedule Gare items which

illustrate the point which I make.

There were numerous items there which refer to

what happens when an unqualified clerk appears or

does something. A simple example is item 40 where

the rules say:

For each day of not less than six hours

employed in travelling or in waiting -

So much:

or for an unqualified clerk, discretionary.

And there are various rules of that nature. Those

rules assume that the only types of person whose

remuneration we are concerned with are solicitors

and their unqualified clerks. That is the universe

about which these rules are talking. There is no

scale which can be used to lay down the costs if

this appeal is successful. What will be done is,

presumably, to use a purely discretionary means of

measurement with nothing in the rules to support

it.

There are also examples in the rules

themselves. Can I take Your Honours to volume 1

now of Ritchie. Your Honours will see in Part 52

rule 67 at page 3146 where subrule (3):

A taxing officer, when exercising his discretion under subrule (2), or in respect of

any item marked "discretionary" in Schedule G

or in any costs determination, as the case

requires, shall have regard to -

(b) the skill, specializ~d knowledge and

responsibility required of and the time spent

and work done by the solicitor or counsel;

The use of the definite article again contains the

same assumption, with the possible extension that

solicitor may include the unqualified clerk for

that purpose. The rules simply assume it.

Cachia(2) 38 16/6/93

It has also been assumed by the legislature.

My learned friend referred to the

Legal Profession Act. I have not given

Your Honours reference to that Act but it is the

Legal Profession Act 1987, and section 178(a) provides that:

the legal fees and costs Board may make

determinations -

I am sorry I am reading the wrong section. It is

section 180:

The Board may make determinations fixing the

maximum amount of costs payable in respect of
any item, or class of items, of contentious
business transacted by solicitors in, or for

the purpose of -

certain courts. There are various scales and

provisions which the Act provides for. To the

extent that they are inconsistent with rules of

court, they override those rules. Again, the

assumption is that legislation has been passed and

things have been done under that legislation on a

certain assumption. This Court is being asked in

effect to overrule that assumption. That is the

first problem.

The second problem is the one that is referred to in all the cases, and indeed in Guss v

Veenhuizen. There is no easy standard for

determining the loss of earnings of a lay litigant.

We give the easy examples, I suppose, of a farmer, an investor, an unemployed person, a housewife or

househusband. How does one measure time in

relation to those people?

There seem to be suggestions, particularly in

the cases my learned friend has referred to, that

one is not merely looking to financial deprivation;
one gets something analogous to damages.	The

housewife who has to go to court who has lost the

benefit of being able to spend the day in the house

is to be compensated in some way as if one was

measuring the damages for having to go to court.

That is a novel concept in the taxation of

costs. It is of course true that there are

circumstances in which the courts dd have to

measure the value of people's time, and personal

injury litigation is one of them, but to have that

sort of argument in every case involving costs is a

terrifying prospect.

MR BENNETT:  It is interesting to note in the present case,

if Your Honours look at the bill of costs,

Cachia(2) 39 16/5/93

Your Honours will see that the item 3 is drafting

the notice of appearance, half an hour at $85.00 an

hour, which produces $42.50, whereas if one

compares that with item 9 in Schedule G, which is

the cost of the same thing being done by a

solicitor, one discovers that preparing and filing

notice of appearance a solicitor gets $36.00 and

that includes filing it for which a further fee of

$54.00 plus travelling expenses of $9.16 has been

charged.

Now, I am not going to involve Your Honours in taxing this bill. That is no doubt a ·task

Your Honours would not relish. But it is of

interest to note that this bill, as one would

expect in a bill by a litigant in person, in some

respects is charging more than a solicitor would

charge, and obviously - - -

MR TOOHEY J: And that may be saying no more, Mr Bennett,

than that the person who is unrepresented

inevitably takes more time to prepare documents but

that is something that the other side ought not to

pay for. In other words, it is scaled down in

those sort of cases to something comparable to what

the unsuccessful party might have to pay if there

were representation on the other side.

MR BENNETT:  It is a problem under the present system,

Your Honour, I must concede that. One of the

criticisms of time costing has always been that it rewards the slow worker at the expense of the fast

worker, and that is one of the difficulties.

Certainly, one could solve that particular problem

by taxing down. But what I am illustrating is that
there is an inherent problem in taking a lay person's time for this sort of task and then

applying a remuneration which would be appropriate

in other circumstances to it. The example of

drafting an appearance, which no doubt would take a

layman half an hour, is a very good example.

McHUGH J:  Why can you not give the lay person the same

amount as the solicitor?

MR BENNETT:  Your Honour, one could do that, one could adopt

a number of possible rules. The rules do not say

what rule one should adopt. But certainly one

could say, .as indeed is suggested at one point in

my friend's client's submissions, that one takes

the lower of the amount the solicitor would get and

the amount on a time basis and one allows that.

But, Your Honour, one still has the problem of

different amounts being charged, the need for it to

be worked out, taxations would be very much more

lengthy, and there are obvious practical

Cachia(2) 40 16/6/93

difficulties. I am assuming at the moment one is

looking at it purely from the point of view of

policy and not from the point of view of law, to

which I will come.

BRENNAN J: What is the underlying policy which leads to the

award of costs at all?

MR BENNETT:	Your Honour, it is a compromise policy. not a policy of providing a full indemnity like	It is
damages to a person who is wrongly sued or who
wrongly defends proceedings or has proceedings

wrongly defended against him or her. It is rather

a policy of allowing a measured degree of
compromised compensation towards the legal costs of

a person who is involved in litigation, and it has
never been more than that.

There is now, certainly, in the Supreme Court Rules, as was pointed out this morning, a category

of costs called indemnity costs. There are five

levels now of costs one can get, as the rules point

out; there is party-party, solicitor and client,

common fund, trustee basis, and indemnity. But

even indemnity does not necessarily give one full

costs because even there what is regarded as

unreasonable or extravagant is taxed off. So the

policy cannot be simply indemnifying a litigant who

has been successful against the costs of

litigation. The policy is itself a compromise

policy which has various elements of public policy

worked into it.

BRENNAN J: Well, if it is not an indemnity to the party who

has been wrongly sued or has to go to court to

vindicate his or her rights, is it a mechanism by

which the court secures for itself legal

representation?

MR BENNETT: That, Your Honour, we would submit, is one - a

subsidiary, but one aspect of the policy, and I

will be coming to that.

BRENNAN J: That would not really account for some of the

witnesses' expenses that are paid, would it?

MR BENNETT:  Your Honour, it is a subsidiary aspect. exclusion of the costs of litigants in person may The

well reflect, in part, that policy. I do not for a

moment suggest it is the whole of the policy and,
of course, disbursements, fees to experts,
witnesses expenses are clearly not in that

category. They are part of the overall compromise

which the law has reached in relation to costs.

There are other solutions. In the United

States, of course, one normally does not get

Cachia(2) 41 16/6/93

anything more than one's court fees and a few minor

disbursements of that type, and there are policy

reasons put forward to justify that as opposed to

our system.

The third matter is simply the obvious point

that if the Court is satisfied that a lay

self-employed litigant is not entitled to costs for

his time, there is no need to answer the more

difficult question about what would happen in the
case of employed litigants because this case

involves a self-employed litigant.

The fourth one is the obvious proposition

about the high costs because one's opponent is

highly paid. The fifth is a significant matter,

and while I would not for a moment suggest that

what has happened in this case would be typical,

the cost and expense of determinations of this

nature is clearly going to be substantial. It is

going to involve taxing officers, and having

hearings and determining what people's incomes are,

and determining what would have happened, almost

conducting a common law trial of the type which

occurs when one measures the value of the time an

injured plaintiff has lost in relation to each

litigant, and that is a significant factor.

McHUGH J: Historically, that is what happened to some

extent, is it not? According to Blackstone, before

the statute providing for costs at common law, the

jury awarded the costs as part of their damages.

MR BENNETT:  Yes, and no doubt the injustice of that led to

the Statute of Gloucester and the construction put

on that statute and the difficulties which that

caused.

It is really tied up with the next point,

which is the delay point. It is very fashionable

today to denigrate the role of lawyers in court

proceedings and, indeed, for some purposes it is

fashionable to regard the absence of qualification

as being itself a qualification, and one sees that
in numerous modern statutory provisions.

But the fact remains that notwithstanding that there are lawyers who are slow and long-winded -

and no doubt Your Honours have had some appear

before Your Honours from time to time - the fact

remains that in general a case is going to be more

efficiently presented to a court and the real

issues brought to the attention of a court by a

lawyer, than by a non-lawyer. That is not because

of any criticism of the one class; it is merely
because the other class is a class which is trained

in, and hopefully skilled in, the task in question.

Cachia(2) 42 16/6/93

Now, in Ketteman v Hansel Properties, a case

Your Honours have no doubt heard on numerous

occasions, the court indicated that the rule that

had otherwise developed in relation to saying that

adjournments would virtually always be allowed

virtually as of right as long as the healing

medicine of costs could be applied, was no longer
the rule, and one reason it was no longer the rule
was the very great pressure of time on courts which

was causing injustice by delaying cases, and what

was said was, "If two parties come to the court and

say, 'It suits us to have a year's adjournment or

six month adjournment', or one party says, 'I did

not prepare properly, I would like an adjournment,

and I am ready to pay the costs of it', the court

says 'No, that is unfair to the litigant who is

next in line waiting for his case to come on.'"

The same problem would arise here.

It is notorious in New South Wales that in the

Court of Appeal in the last few years, a number of

litigants in person - I do not, I should add,

include the litigants in this case in what I am

about to say - have caused an enormous amount of

time to be taken up, and an increase in the delay

of times for hearing in the Court of Appeal.	Now,
that is their right.	They have been appearing and

they have been exercising their right.

McHUGH J: But there are litigants and litigants.

MR BENNETT:	Of course there are, Your Honour, and of course any rule which is -
McHUGH J:	I sat on Cachia v Isaacs and Mr Cachia presented

his own case on that occasion and presented it very

efficiently.

MR BENNETT:  I specifically excluded the present litigants

from that submission and I did that advisedly.	Of
course there are litigants in person who are
skilful, careful and able to put their submissions

in a way which is satisfactory from the court's

point of view, and who use their best efforts to do

so efficiently. But the fact remains that,

overall, if there are steps taken which encourage

litigants in person to proceed without lawyers,

there will overall be greater delays and greater
time spent in the determination of Gases. That is

a factor which needs to be taken into account in

considering this type of policy. I see,

Your Honour, it is a quarter to one.

MASON CJ: Yes. We will resume at 2.15, Mr Bennett.

AT 12.45 PM LUNCHEON ADJOURNMENT

Cachia(2)	43	16/6/93
UPON RESUMING AT 2.18 PM:
MASON CJ: Yes, Mr Bennett.

MR BENNETT:  Your Honours, I had got to paragraph 2 on page

3 of my outline of submissions. Paragraphs 2 and 3

are alternative. The first paragraph, paragraph 2,

puts the submission that the word "costs" has been

construed by authority and that it is, therefore,

not open for that word to be extended in the way my

learned friend submits.

Your Honours will note that each of the words

used in the inclusive definition is completely

consistent with the common law position,

particularly as costs, no doubt, may include in

some circumstances witnesses' expenses. But the

phrase is it:

includes fees, charges, disbursements,

expenses and remuneration.

It is a list put there for more abundant caution but all those terms are capable of application to

costs, party-party costs, and solicitor-client
costs, normally charged by solicitors, and

disbursements incurred by them and by counsel. In my respectful submission, nothing in that

definition suggests that there is any intention to

change the meaning established by a long line of

authority.

MASON CJ: What are the changing social perceptions that you

consider to be bearing down upon you?

MR BENNETT: Well, Your Honour, perhaps I gave them more

weight than I should have, in view of the way my

learned friend put it, in anticipation. But,

Your Honour, in my respectful submission, this is

simply not an area where that should be done.

There are areas where changing social perceptions

are a matter for the courts, there are areas where

it is more appropriately for the legislature or, as

in this case, for rule-making bodies which consist

largely of judges.

In my respectful submission, it is simply

inappropriate for a court to say - in an area where

there has been a long series of decisions, where

Acts have been passed, rules have been made on the

basis of those decisions and which assume those

decisions, for this Court to say, "We think now,

because of changes in social attitudes, we ought to

change that attitude. It may create a lacuna, it

Cachia(2) 44 16/6/93

may mean that there is an area where there are not

rules, but we think it ought to happen."

In my respectful submission, that goes beyond

the role, the appropriate role for a court in

determining legal principles.

BRENNAN J: It is not so much that, is it? You have

delivered one argument which is, it is difficult to
quantify, but if you look at where the justice of
the case lies, what is the justice of awarding
costs? What is the reason for it? You have

proposed the notion that there are mixed policies

in this, that if there is any change to be wrought

one would think it would be wrought in order to do

better justice. Well now, where does justice lie?

MR BENNETT: Well, Your Honour, justice lies in this area in

a series of compromises between a desire to

indemnify a litigant who has suffered because of

the wrongful defence or prosecution of litigation

by his opponent - that is the principle my friend

relies on. But one must add to that the need for

efficiency in the courts and the fact that

indemnity has never been full indemnity. Even

today, even where indemnity costs are sometimes

ordered, it is not full indemnity.

There are countervailing policies as to the

manner in which one conducts litigation, to the

extent that many matters which are perfectly normal

and permissible as between solicitor and the client

are regarded as luxuries as between party and

party. The law has always taken a fairly strict

view on what is to be allowed and it has decided

what is to be allowed·on the basis of a number of

the conflicting policies which I have referred to.

And in my respectful submission, this is one

of those compromises on the basis of conflicting

policies. And it is important to stress that	nothing has changed. There were litigants in
person in the 18th century, some long-winded and
vexatious, some having a just cause and presenting
it fairly and properly, as there are today. One
doubts if the proportionality of the two has
altered, although one would not wish to speculate
on the proportionality. But those considerations
have not changed. All that has changed is that
there is, in Australian society particularly and
perhaps in the world generally, an increasing denigration of the role of lawyers and perhaps the
roles of professionals generally. One sees it with
doctors, with engineers, with lawyers and with
various other professionals. And that is really
the only relevant changing social perception.
There is nothing else that has changed.

Cachia(2) 45 16/6/93

The rule in relation to solicitor litigants,

one can well understand a view being taken critical

of that rule, but that is not before the Court today. That issue does not arise. That is an issue for another day. That is the issue the Court

considered in Guss' case. But the issue in the

present case is a simple issue of whether a rule

which has stood for a long time, which carries with

it a number of elements of the compromise to which

I have referred, should be maintained, bearing in

mind that what one is really doing in a sense is

construing legislation - not consitutional

legislation but ordinary legislation - enacted in

an assumption as to the underlying rule, where a

word is used which has the meaning which has been

laid down in a long string of cases.

In my respectful submission, that is not the

sort of case where the Court appeals to a social

policy to determine what is the correct result.

GAUDRON J: Could I interrupt you there. What precisely is

the meaning that you say has been determined in a

long string of cases? Is it an indemnity meaning

or is it lawyers' costs meaning?

MR BENNETT: Lawyers' costs, Your Honour, plus certain

witness expenses, and in certain cases witness

expenses of parties subject to certain

restrictions, which I will come to when I get to

that.

GAUDRON J: But if you go on to that, it does not have a

fixed meaning, does it, really? It is just that

that is the way it has been applied. One can

understand it being limited semantically, if you

like, to costs that have been already paid or that

you are liable to pay.

MR BENNETT:  It is more than application, Your Honour. The

Statute of Gloucester used the word "costs". Very

early the court said - and I will take Your Honours

to cases as early as 1832 and textbooks in the

18th century - the court said that does not include

the litigant's own time and trouble.

GAUDRON J: Yes, but they do not seem to provide a definite

meaning such as you were asserting, as I understood

you.

MR BENNETT:  Your Honour, there are a number of more

sophisticated glosses on it, and witness expenses

is one of them. The problem of witness expenses of

parties is another. That gloss was very quickly

solved and very clearly solved in the 1840s and

1850s by the line of cases which said if you are a

party, you are entitled to your costs as a witness

Cachia(2) 46 16/6/93

but they will be scrutinized carefully to make sure

that they are as a witness and not as a party, or

as a potential witness and not as a party.

In some cases that has resulted in a little

stretching because often it is very difficult to

determine to what extent a party is a potential

witness, as he is to some extent during the whole

of the case. Indeed, in this case virtually the

whole of the attendances at the hearing have been

allowed. What has not been allowed is time reading

documents, time preparing documents, time attending

to take· judgment where he could not be a witness,
time attending on taxation where he could not be a

witness, and matters of that sort.

The mere. fact that there are details that the

courts have had to work out does not mean that in
the central area, the area of the litigant's own

time and trouble in preparing his case, which is

what this case is about, there has not been a

single consistent line of authority stretching back

for over 150 years.

McHUGH J: But is not your problem the solicitors case? It

seems to me the solicitors case, that is, a

solicitor who acts in person, was a departure from

principle.

MR BENNETT:  Yes, Your Honour, there is.

McHUGH J: And once you depart from principle, why should

not the solicitor in person's case be used as an

analogy, for another inroad from principle if you

like? It just seems to me arguably unfair that if

a solicitor in person can get costs, why should not

a lay person get costs?

MR BENNETT: Because the view was always taken, I suppose,

that if one of the major problems was

quantification, that problem did not arise where

the solicitor acted for himself. It was a policy

decision made early and it has been repeated for a

long time. If it is wrong it is wrong. If it

should be overruled it should be overruled,

although that may not be this case. But the

existence of an exception almost as old as the rule

cannot detract from the fact that the rule is there

and has been maintained consistently. The rule

does not even extend to barristers, the exception.

There is one case I will take Your Honours to later where there was a barrister and solicitor in

Victoria who had signed the role of counsel in

Victoria, and it was said that he only got his

costs because he could have acted as a solicitor

under the Act, and a different result would no

Cachia(2) 47 16/6/93

doubt have been reached in New South Wales. So it

is a very narrow exception and no doubt based on

the quantification matter referred to in Guss's

case, and the difficulty and inconvenience of

quantification, and the possible injustice of

quantification.

McHUGH J: In the solicitor's case he gets his profit cuts

as well, one assumes; not just merely for his

labour, but also, in effect, the profit he - - -

MR BENNETT:  If one was starting from scratch one could not

justify that exception, ie, if this were the first

case where that had been proposed, one would have
enormous difficulty justifying it. It is an

anomalous exception, but the mere fact than an

anomalous exception has developed after the rule

has developed is not, in my respectful submission,

a reason to challenge the rule or to doubt its
consistency or its sum effect.

The other matter to bear in mind is it cannot be dealt with under the inherent power.

Your Honours will recall the decision of this

Court, which I have copies of for Your Honours, in

Commonwealth Trading Bank v Inglis, a decision of

Chief Justice Sir Garfield Barwick and

Justice McTiernan, where Their Honours held that

there was legislation which provided for declaring

a litigant to be a vexatious litigant on the

application of the Crown Solicitor or the Attorney

General, and a litigant, which had been repeatedly sued and the Commonwealth Bank sought to have the

litigant declared vexatious under the inherent

power. The court held that because there was a

special power in the rules one had to regard any

inherent power as being excluded. The relevant

passage is in page 318 of Their Honours' judgment.

In the middle of the page, almost exactly half-way,

against the words "to do so" in the left-hand

margin, Their Honours said: 

In our opinion, the nature of such provisions and the history of their introduction show clearly that they were intended as grants of

an additional power. It is unacceptable, in

our opinion, to say, as the applicant submits, that the enactment of such a provision as that contained in 0.63, r.6 leaves ~naffected an

inherent power which the court is said to have

'to make an order of the kind for which that

rule provides. Those authorities which refer

to the continued existence of an inherent

power, notwithstanding that a like power is

conferred by rules of court, have no

Cachia(2) 48 16/6/93

application, in our opinion, to a provision of

the kind now being considered.

And, in my respectful submission, that would be the

problem here. One has number of very specific

rules dealing with costs; the items dealing with

solicitors' costs and their clerks' costs and one

simply cannot, in the face of that, in my

respectful submission, add by some inherent power a

power to order other things not included in the

word "costs".

The fourth point is this, that in one sense

the Court is being asked to consider a judicial

discretion without knowing the relevant facts.	The
judge has made a particular order for costs, no
doubt being aware of its limited effect, and one cannot assume that he would have made the same

order had he been aware of some new approach being

taken to the meaning of the word "costs". The

nature of the claims is fairly straightforward. It

is clear that all the items claimed are really

professional costs, but differently quantified.

If one looks at the items in the bill

virtually every item - in fact I think every item -

is what one would call in the strict sense, "legal

work", which, if done for someone else, might well have been a breach of the Legal Practitioners Act,

or now the Legal Profession Act.

If one goes through them very quickly,

Your Honours see one draft letter to plaintiffs;

three draft letters of appearance, draft letter to

plaintiffs, peruse summons, peruse affidavit, draft

affidavits, swear affidavit, attend mention, where

of course he would not have been a witness, prepare
for hearing in excess of 45 hours, but say 40

hours, peruse letter, peruse affidavit, peruse

affidavit, prepare for hearing, that is eight

hours, draft letter to the associate, attend court

for judgment, draft bill of costs, draft affidavit,

swear affidavit.

So virtually all of them are attendances of a

professional kind and one or two others are

swearing affidavits or attending court to appear on

occasions where he could not possibly be a witness.

The claim for travelling expenses I.will deal with

later.

In the judgment of the learned President there

is a suggestion that there was no general rule in

England going back beyond 1970. We would submit on

the contrary, that the rule goes back much further.

I have listed a lot of cases in the next few pages.

Cachia(2) 49 16/6/93

I will not be taking Your Honours through all those

cases, but I do propose to touch on a few of them. Might I just start by handing Your Honours the

earliest document we have discovered relevant to

this which is Sayers: Law of Costs, a 1768

publication. The first five pages discuss in what

cases a plaintiff may recover costs under the

Statute of Gloucester and I will not take you

through all those beyond pointing out to

Your Honours that on page 5 the learned author says

this at the top of the page:

Only the Costs of the Writ are mentioned

in this Statute: But the Construction has

been, that it extends to the other Expences of

carrying on a Suit as well as to the Costs of

the Writ. It has however been holden, that
the Plaintiff shall not be allowed any Money

expended on the Account of himself nor any for

his own Loss of Time.

That seems to have been the rule at least as early

as 1768.

McHUGH J:  It really does not deal with the question,

though, as to whether he or she is entitled to the

costs for the work that she does in relation to it.

MR BENNETT:	The work as opposed to the loss of time has never been treated as a separate item, both in
relation to the costs of a solicitor and in
relation to this argument or where it has been
made.  The two have been treated as being
synonymous.

McHUGH J: Well, they may have, but in principle there seems

to me to be a difference, does there not? It is

one thing for a party to employ a lawyer and then

claim for his or her own loss of time, that is one	thing. It is another thing all together where the	lay person does the work and is refused payment or
reimbursement or indemnity for that work as opposed
to the loss of time.

MR BENNETT:  But the work is the loss of time. Otherwise

there would be double counting. If he was entitled

both for his time for doing the work at some rate

and for doing the work itself, there would be an

element of double counting. What one does with a

solicitor is, one has two elements. One has the

rate which varies depending on the difficulty of

the task and the amount of skill involved, and one
then has the time spent doing it at a rate for

time. But he is only being paid once for doing the

work and his time in doing it; one does not count

them as two separate items.

Cachia(2) 50 16/6/93

MCHUGH J:	I know.
MR BENNETT:	And that is why we have submitted, in paragraph 5, that the loss of earnings is really another way
of claiming professional costs. There is no difference in principle between the one and the
other. And it raises, of course, all the problems
which I have referred to about unemployed people or
people who have wages which they lose - which is
the easy case, in one sense - and people who have
professional incomes where it is much harder to quantify.
McHUGH J:	But maybe the correct way to look at the matter

is not to look at it as a claim for loss of

earnings but as a claim for reasonable remuneration

for the time expended on the case, independently of

what your earnings might be.

MR BENNETT: That, first of all, would run contrary

certainly to the spirit of the Legal Profession Act

which - - -

McHUGH J: Not necessarily, because it is not as though you

are doing work for somebody else, you are doing the

work for yourself.

MR BENNETT:  That is so, Your Honour. Of course that is

right and that is why I said the spirit and not the

letter. The principle is the same. The principle

is that only legally qualified people may receive

remuneration for doing legal work, and the concept

that, by commencing the suit or by being sued, one

becomes free to do legal work and charge for it as

if one were a lawyer, maybe at a lower rate, maybe

not, is one which is quite contrary to the spirit

of that legislation.

McHUGH J: Well, you use the term "charge for it", but you

are really being indemnified for the time you have

spent on the case.	One difficulty with
Mr Jackson's argument is that if you look at it in

this loss of earnings way, then if the plaintiff is

on the dole, the costs are very small; if he is a

professional person or a company director, then

they can be very high, unless you put a cap on it.

MR BENNETT:	Yes.
McHUGH J:	But what if you look at it in terms of being

reimbursed for the legal work that is necessary for

you to either defend yourself or to bring your own

claim?

MR BENNETT:	That is not even, in many cases, the basis on which a solicitor is paid, because he is paid a fee
for his time and for the skill expended during that

Cachia(2) 51 16/6/93

time.	He is not so much paid for producing a
result.	Your Honour, in my respectful submission,

it is a basis of costs which would be totally

different to any basis yet used. In addition,

Your Honour, it would not come within any of the

words. It certainly is not "costs".

McHUGH J:	Why is it not remuneration?
MR BENNETT:	It is only remuneration if it is something for

which he would be entitled to charge. The

assumption behind Your Honour's question is that

there is otherwise some entitlement to charge

remuneration.

McHUGH J:  No, no, it is compensating him, indemnifying him

for the time that he spent in preparing the case.

MR BENNETT:  But that is my submission, Your Honour. My

submission is that is what it is. It is a time

charge. Once one says it is a cost of the work, it

ceases to be an indemnity, it becomes a benefit

almost. It is a payment for work as opposed to time and the fees have never been calculated on

that basis. In my respectful submission, it would

be quite anomalous if one were to include within

the word "costs", without any prior authority, a

type of remuneration which has never previously

been countenanced in this context.

TOOHEY J:  Mr Bennett, the book of Sayers that you handed us

rather suggests the Statute of Gloucester was

concerned only to provide for costs of the

plaintiff. Is that simply because Sayers was

looking at the position of the plaintiff's costs or
did the statute, in fact, extend to the costs of

both parties to litigation?

MR BENNETT:  Your Honour, I have a recollection that I saw

something in one of the early cases suggesting the

plaintiff's costs and dependent's cost may have had

a slightly different administrative history, but I

do not know the answer beyond saying that. I have

not checked the rest of the book to see if it goes

on to deal with the other. I think the first

statute dealt only with plaintiffs, and I think

later it was extended to defendants, but I may be

wrong in saying that.

TOOHEY J: Yes, thank you.

MR BENNETT:  Your Honours have been taken to the institutes,

and I will not take Your Honours back to that.

There are a couple of very early cases which I only give Your Honours the reference to to show that

there are authorities before the ones cited in the

more traditional sources. Neither of these cases

Cachia(2) 52 16/6/93

are terribly helpful, but they both concern

solicitors, but they both seem to make the general

assumption.

Howes v Barber, which my learned friend took

Your Honours to, I simply want to remind

Your Honours of one sentence which my learned

friend did not read which, in our respectful

submission, is the most important aspect of that

case for present purposes. That case, Your Honours

will recall, is reported in 18 QBR 588 and 118 ER

222. This was a case involving a litigant who was

both a litigant in person and a necessary witness.

He was the captain of a ship who was claiming his

wages. The second-last paragraph on page 224 is

what makes the ratio clear. They start by saying:

We must trust to the intelligence and the vigilance of the taxing officers to detect and

to frustrate attempts that may be made to

swell costs unnecessarily under the pretext

that the parties were material and necessary

witnesses. The simple fact of their being

examined as witnesses must by no means be

considered sufficient to establish a claim for

their expenses as witness -

Stopping there, the concern is that a party will

call himself unnecessarily in order to be entitled

to claim this type of cost:

and, if it appears that their attendance was

unnecessary, or that they attended to

superintend the conduct of the cause -

in other words, if they merely attended to run the

case and not genuinely to be a witness -

the claim ought to be rejected.

So the case very clearly, in my respectful

submission, put witnesses in a different

compartment to litigants.

The same appears from the next case my learned friend cited, Dowdell, 118 ER 1379, where again

there is a sentence making that clear. It is the

same volume, 3 El & B 902. At page 1381, the

second-last sentence of the judgment, Lord Campbell

says this:  ·

We must guard carefully against an abuse by

which parties in a cause may, as witnesses,

obtain an allowance which they are not

entitled to as parties. Under such peculiar

circumstances as the present the allowance was

right: but we most earnestly desire that it

Cachia(2) 53 16/6/93

may not be considered a general rule that

parties, if witnesses, are to have an

allowance for their attendance.

You have got to be more than a witness; you have to

be a really necessary witness who is not just going

in the box to justify a claim for costs.

There is an Irish case, which I can deal with

at this stage, which is the leading case in

relation to travelling expenses. It is the case of

Anthony v Walshe, (1888) 22 LRI 619. This case

also contains a reference to the problem which I

used in giving the answer I gave to

Your Honour Justice Toohey a few minutes ago, and

again I am not certain of the ramifications of it,

but Your Honours will see at page 622

Lord Ashbourne, four lines from the bottom of the

page, having talked about a plaintiff says:

A defendant who appears in person is in a

different position which it is not necessary

to discuss.

But one suspects what is being referred to there is

that a plaintiff knows whether he is needed as a

witness or not and if he is not, it is not

necessary that he should attend and therefore he

does not get his costs, whereas a defendant may not

know what allegation is to be made against him and

therefore may need to be present in case he is a

necessary witness. That may be what His Lordship

is referring to, but it is not completely clear.·

At the top of the next page His Lordship says:

A plaintiff appearing in person may also

be a necessary witness in his case. These are

not the questions before us. The case before

us is that of a plaintiff in person appearing

and successfully opposing a motion to remit

and claiming her travelling expenses as part

of the costs of the motion which were awarded

to her.

And then that issue is discussed, and in the event those costs are not allowed.

At page 624 there is a general discussion from

the middle of that page to the midd~e of the next

page about the alternative rights a party has to conduct his own case or get legal costs. And at

page 625 at line 8 His Lordship says:

Every suitor may either conduct his own case,

attending Court at his own expense for the

purpose, or he may employ professional

practitioners to conduct it for him, and for

Cachia(2) 54 16/6/93

such assistance fixed costs are allowed. If,

through confidence in his own powers, mistrust

of lawyers -

so it is not only this century -

want of money, or for any other reason, he

conducts his own case, the other party is not

to pay him for his time, trouble, or personal

expense, in doing so. The way the theory

works out in this particular case shows its

reasonableness -

and then it shows how the bill of costs is higher

because he is a litigant in person. At the bottom

of the next page in relation to travelling

expenses, Lord Justice Barry says:

I agree in the general proposition that a

suitor suing in person is not entitled to

incur the expense of coming to Dublin from his
home, for the purpose of conducting the
ordinary operations of a suit, and to recover

the amount of such expense from the opposite

party. But I entertain a doubt as to whether,

as a matter of justice, a plaintiff suing in

person who is dragged up to Dublin by a motion

to remit the action - and my observations are

addressed to such a case alone - is not

entitled to recover the expense he is thus put
to, from the party who instituted the motion,
when it is unsuccessful. That is what

occurred in the present case, and I confess I do not see the justice of not allowing to the

plaintiff all the costs and expenses she was

thus put to. On.the general question, I agree

with the Lord Chancellor the

Lord Justice FitzGibbon, that in the ordinary

proceedings of a suit a suitor in person is

not entitled to the expenses incurred in

coming up to town on every occasion.

It seems to be that the reason, although it is not

stated there, bearing in mind the difference

between the plaintiff and the defendant, is the
possible need to be a witness. Lord Justice Naish

says:

I concur with the other members of the

Court in holding that if a suitor conducts his

case in person his travelling expenses are not

part of the costs which should be allowed to

him.

The case is referred to with approval in this Court

in a case I will come to later.

Cachia(2) 55 16/6/93

The rule in relation to witnesses has also been discussed in four Australian cases which I

have listed there. I will not take Your Honours to

them, but each of them contains some language which

makes it clear that as in the English cases one is

only talking about expenses as a witness. The

first case uses the words "a witness as such", and

each of the cases uses some phrase indicating that.

Fitzgerald v Wilson has a short comment by one

of the judges in the Supreme Court of Tasmania to

the effect that he regards the rule as a little

unfair, but regards it as too well established not

to be followed.

There is a decision of this Court, or rather

the Chief Justice of this Court, in Chanter v

Blackwood, l CLR 456, to which I should briefly

refer Your Honours. This was an election petition

and the question was the costs of the petitioner

who had attended because he might have been a
witness, and the Chief Justice said:

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.

He set out a lengthy passage from Howes v Barber,

and then says:

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 probably 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.

And he refers to Anthony v Walshe again, and then

he says:

In the present case I think that the attendance of the petitioner as a witness was

reasonably necessary. In fact., al though he

was not called as a witness - ·

in effect he might have been and he gave

information, and so on. So the rule, the

distinction, between witnesses and parties was

recognized by the Chief Justice in the very early

years of Federation.

Cachia(2) 56 16/6/93

I should briefly refer Your Honours to the

position in other countries. In Canada the cases

say that the position was the same. There was some

doubt whether the Charter of Rights and Freedoms

affected it. Without taking Your Honours to these

cases which I have given Your Honours references

to, McBeth's case suggested that that Charter did

change the common law rule, then Skidmore v

Blackmore, in effect, reversed that and said that

it did not have that effect, but both cases are

quite clear on the proposition that a litigant in

person is not entitled to costs of the present

type, and both cases regarded it as quite clear

that that rule fixed an immutable rule of law,

subject only to whether the statute had overruled

it.

The rule has been applied in New Zealand in

Lysnar v National Bank of New Zealand, which again

I have given Your Honours the reference to.

The Law Reform Committee of South Australia's

report, which is referred to in the learned
President's judgment, refers to the position in the

United States. There, as one often finds, there

are cases both ways and it is not very helpful, but

in general, of course, legal costs are not awarded

in the United States so the problem is not a

problem of the same nature; it is a different type

of problem in that system.

I have referred to the solicitor-litigant

exception and the limited nature of the exception.

Ogier v Norton is the case I referred Your Honours

to earlier. That was just after the legislation

which attempted to fuse the profession in Victoria

and at a time when the private bar role had been

set up and the argument was because the barrister

concerned had signed an undertaking not to practice

as a solicitor, he could not be taken to have so

practised when he corrected his own case, or did things in the course of his own case. What the court said in effect was, "Well, he

may or may not be in breach of his undertaking, we

have not got to decide that, but he was acting as a

solicitor in acting for himself" and the solicitor

rule was held to apply to him because, being a

barrister and solicitor, he was eligible to act as

one. The judgment seems to suggest.that had he

been in a State where there was a divided

profession, he would not have recovered his costs.

The Australian the next paragraph. authorities I have listed in

My learned friend has referred

to most of them and	I will not go through them
individually beyond	saying that all, with the

Cachia(2) 57 16/6/93

exception of Boswell's case, are consistent with

the general principle.

I should say a little bit about Guss v

Veenhuizen, 136 CLR 47. That case was not, in my respectful submission, a decision which was merely

obiter on the present issue. There were three

propositions which were necessary for the decision.

The first was that a lay litigant in person does

not recover his costs of the present type. The

second was that there was an exception in the case of a solicitor, who did. The third was the answer

to the specific question which arose in that case,

which was which side of the line did Mr Guss fall

on, and what the Court said was, bearing in mind

that he is qualified as a solicitor and bearing in

mind that he did all that could reasonably be

expected of him to put himself on the roll, and

that it was the Court officer's error which meant

he was off the roll, he fell on one side of the

line.

The judgment in the majority makes it clear

that the case would have fallen on the other side
of the line if, as in the example given by

Your Honour Justice McHugh, the solicitor's absence from the roll had been his own fault and not the

registrar's fault.

At the bottom of page 52 in the judgment of the Acting Chief Justice Sir Harry Gibbs and

Justices Jacobs and Aickin this is what is said.

It is about ten lines from the bottom:

If the error had not been on the part of an officer of the Court but had been the fault of the party himself,· the Court would not attempt

to assess his capacity to do the work done by

him. He would be regarded as in the same

position as an ordinary layman. But when the

simply through the error of a Court officer,	lack of qualification cannot be regarded as a lack of capacity because it has occurred
then the principle to which we have referred
earlier in these reasons is applicable and the
Court should treat him as though he had the
qualification -

so the case must be regarded, in my.respectful

submission, as laying down three principles of law:

one, the general principle, that a litigant in

person does not get costs; two, the exception that

a solicitor litigant in person does, and, three,

the specific application of that to the very

special case where a solicitor is only not on the

rolls because of the error of the registrar. In my

Cachia(2) 58 16/6/93

respectful submission, the case is clear authority

for the present proposition.

The other case to which I need to refer is the

court last year. Indeed, as my learned friend points out, it is a decision of that court while

recent decision in the Federal Court in

this litigation was pending, which in fact refers

to it.

My submission in relation to this case is

twofold. First, it is, to some extent,

inconsistent with Guss v Veenhuizen, and to that

extent clearly does not represent the law. It

reaches that result, I should say, by an attempt to

distinguish it which, we respectfully submit, is

incorrect.

At page 557 at line 28 after referring to some

policy considerations, some remarks of the judges
in the Court of Appeal in this case, Their Honours

say this:

Nevertheless, we think the authorities to

which reference has been made establish that a

litigant in person who is not a solicitor may

not receive any remuneration for work done in the preparation of a case or for appearing in

court.

They start by saying no remuneration for

preparation or for appearing, and this case is

concerned almost exclusively with remuneration for

preparation. They go on to say:

But they also establish that litigants in

person are entitled to recover their out of

pocket expenses. We can find nothing in the

cases which obliges this court to hold that a

litigant in person who has had to have time

away from his or her employment or business in

order to prepare a case or to attend court to
present it should not recover an indemnity for

any loss of earnings suffered in consequence.

Now, Your Honours, with the greatest respect, in my respectful submission, those.two sentences

are totally inconsistent and they cannot be

reconciled. The first says, no remuneration for

work done in the preparation of case or appearing

in court, but he is entitled to indemnity for loss

of earnings for a person who is obliged to travel
away from his or her employment or business to

prepare a case.

Cachia(2) 59 16/6/93

Now what, one asks respectfully, is the difference? In our respectful submission, those

two sentences demonstrate a distinction without a

difference and there is no real distinction between

what the court is deciding there and what occurred

in Guss' case.

Your Honour Justice McHugh asked this morning

a question about costs being an indemnity only.

Might I just hand to Your Honours a short summary

of a few of the cases we found over the luncheon

adjournment in relation to that proposition? It

does not have a great deal of effect on the present

argument, but I should just show Your Honours what

has been held.

The most recent English case is re Eastwood

where party/party costs were allowed to the

treasurer's solicitor and the early cases were

reviewed, and there was a dictum that the costs

would only be disallowed if it were shown to be

more than an indemnity. There was some brief

discussion about the salary problem - what would

happen if his salary were more or less, and the

court simply dealt with that by saying, "Well, of

course, your salary is not the only component
incurred by the government in engaging the services

of the treasurer's solicitor". It did say that it

would be open to the respondent to show that it was

more than an indemnity, but that was put very much

as a side issue.

In Mccullum v Ifield, party/party costs were

allowed to a solicitor employed by the Government·

Insurance Office in New South Wales. In Taylor v

Price (No. 2) it was said that where there was a

fixed fee agreement between solicitor and client,

the client could not recover more on a party/party
taxation. But that turned on a provision of the

Legal Practitioners Act (NT) about costs

agreements, so it does not really take it very much

further.

Marriage of Sheehan is a case where

party/party costs were allowed, notwithstanding an

agreement between solicitor and client that no

costs would be charged if the litigation was

unsuccessful. I should say, since that case the

New South Wales Bar Association has taken the view,

on a number occasions, that there is no ethical

objection to a barrister taking a case on the basis that he will only be paid if successful, or only if

there is a successful taxation of costs.

In the old days one used to have to go through

a ritual of saying to the solicitor, "I will charge

my normal fee but I inform you that my present

Cachia(2) 60 16/6/93

intention is that if I do not succeed in the

litigation I will not press my account." That form

of words which used to avoid the rule is no longer

regarded as necessary as an ethical matter.

There is one other case not on that list which

I have not given Your Honours a reference to, but

which I simply give Your Honours the reference to

now, of Johnson v Santa Teresa Housing Association,

(1992) 83 NTR 14, where it was said that the fact

that a party is indemnified by another party

against his costs of action is not a reason for

denying an order for party party costs. So, even

though - - -

McHUGH J:  The old case is about the nominal plaintiff

covenant; that was decided in the last century.

MR BENNETT:  It must be so with insurance companies, for

example. But it again is some limitation on the

concept of pure indemnity in relation to costs.

My learned friend referred to a number of cases on page 9 of his submissions in relation to

witnesses including Reed v Gray, which was the

English case about the housewife and Australian

Bluemetal, which is about the company directors who

sat in a court in case they were called. Both

cases are consistent with the approach taken in

relation to witnesses.

As part of the series of comprises which one has to make in the development of policy, the law has said that the witnesses are entitled to witness

expenses in the absence of scales and those

expenses are to be worked out in accordance with

their station in life and earnings and matters of

that sort.

The arguments about difficulty and

inconvenience and expense, of course, apply, but

are far less significant in the case of a witness
than a party.	They are far less significant for

two reasons. First, in most cases the amount

involved would be very much smaller. It would be

one day rather than the much longer periods
normally spent by a litigant in relation to a piece
of litigation. It is easier, perhaps, in relation

to very small amounts to take the v-~ew that the

degree of inconvenience is not likely to be

important.

That is not necessarily the case in relation

to litigants in person where the amount of time and

inconvenience may very well be much greater. But I

do stress that they are all witness cases.

Cachia(2) 61 16/6/93

My learned friend also referred to a number of

cases at page 4 to Knight's case and Aiden's case.
They are concerned with costs against non-parties

and, in my respectful submission, that is a totally

different type of consideration. The issue of who

may be ordered to pay costs has no relationship at

all to the issue of what types of costs are

allowed.

Finally in relation to travelling expenses,

this involves two items on the bill of costs. If

Your Honours go to pages 3 and 4, it is part of

item 31 which is "Attend Court to receive
judgement" and travelling expenses of $9.16 are
claimed; and then item 44, "Attend taxation of

bill", travelling expenses of $9.16 are claimed.

The issue in relation to this sum - - -

DEANE J:	Can we not have a whip-around and pay the $20?
MR BENNETT:	One assumes, Your Honour, that the principle is

regarded as more important than the amount

involved. It is an obvious comment, Your Honour,

with respect, and it is one that we_ all would agree

with. These are expenses to attend court on

occasion when, presumably, there was no serious

possibility of the litigant being called as a

witness and, for that reason presumably,

disallowed.

There is a clear decision in Anthony v Walshe

to that effect. That decision was referred to by

Sir Samuel Griffith in the case to which I took

Your Honours in 1 CLR. In my respectful

submission, the effect of deciding the contrary is

to allow the litigant something over party and party costs. It is obviously a matter of less

importance than the balance of the case, and I will

not spend any more time on it.

The only question remaining is the question of

costs of these proceedings. I had rather assumed

before today, on the basis of what fell from

Your Honour the Chief Justice on the special leave

application, that it was not the intention of the

Court to make any order for costs in these

proceedings. My learned friend did not mention

costs, nor do the submissions which he prepared.

But the submissions prepared by his· .client at some

length support a submission that costs should be

ordered.

It is, of course, a matter within

Your Honours' discretion. If no order for costs

were sought by the appellant in the event that he

succeeds, no order for costs would be sought by my

clients in the event that they succeed. But if my

Cachia(2) 62 16/6/93

learned friend persists in seeking an order for costs as the document he handed up suggests, we would reciprocate by seeking the same order if we

are successful. It would be unfortunate in the

circumstances of this case if that were to occur.

MASON CJ: What I said, Mr Bennett, was that there was a

possibility that the Court would make no order for costs in relation to hearing the appeal. In other words, the three members sitting on the special

leave application could not speak so as to bind the

Court, but it was identified as a possibility.

MR BENNETT:	Your Honour, there is no secret of the basis on which all counsel and solicitors were asked to act ·
in these proceedings, as I understand it, on both
sides by the Registrar, and in my respectful
submission, it would be highly inappropriate in such a case for the Court to contemplate making an
order. But if the Court takes the view that it would receive my learned friend's application and,
if he were successful, grant it, then as I have
indicated, we would take a reciprocal view. Of
course, there is one slight mitigating factor which
might arise and that is the Federal Proceedings
{Costs) Act, and if Your Honours were minded,
notwithstanding my submission to make such an
order, I would ask Your Honours to grant a
certificate under that Act.

BRENNAN J: Under what Act?

MR BENNETT:  It is the Federal Proceedings (Costs) Act. I

have not brought it with me - - -

BRENNAN J:	How would it arise under that Act?
MR BENNETT:	I am sorry?
BRENNAN J:	How would any relief lie under that Act?
MR BENNETT: Perhaps I should have checked this before I

made the submission, but my understanding is that

it applies to all appeals to this Court, but I may

be wrong in that.

MASON CJ:  Even on an appeal from a State court?

MR BENNETT: That was my understanding, Your·.Honour, but if

I am wrong in that I am wrong.

MASON CJ: Yes.

McHUGH J:  I did not think that was right. I thought it

only applied to federal matters, but you can apply

under the New South Wales Suitors Fund Act.

Cachia(2)	63	16/6/93
MR BENNETT:	Yes, it may be under that Act, Your Honours.	I

should have checked this before.

McHUGH J: It provides for -

MR BENNETT: Perhaps I could have leave just to refer

Your Honours to the relevant sections in the next

48 hours. I can have that verified.

McHUGH J:  The New South Wales Suitors Fund Act is purported

to apply to the High Court in Gurnett v Port

Macquarie Stevedoring, and the Court held it was

invalid, but then that Act was amended so that you

could apply to a judge in the supreme court for a

certificate in respect of an unsuccessful appeal to

this Court.

MR BENNETT: Well, Your Honour, I am at a disadvantage. I

had understood before today that there was going to

be no application for costs, and I am taken by

surprise by the application, and it is in view of

that that I have referred to these matters.

McHUGH J:  You may be right about the Federal Costs Act, but

my recollection was that it only applied to federal

proceedings, appeals from Federal Court.

MR BENNETT:  Your Honour, for those reasons, it is my

respectful submission that the appeal should be

dismissed.

MASON CJ: Yes, thank you, Mr Bennett. Mr Jackson.

MR JACKSON:  Thank you, Your Honours. Your Honours, may I

deal with a number of matters arising from my

learned friend's submissions and one or two things

arising from observations of Your Honours. The

first is in relation to the question of indemnity.

Of course, indemnity in the context with which one

is speaking does not mean just outgoings. That is

apparent from the fact that a solicitor obtains

costs in respect of his use of time. Could I refer

Your Honours to what was said by Mr Justice Denman

in Chorley in the Queens Bench Division and also to

the fact that a solicitor obtains profit costs.

Your Honours, the second matter, and it

relates to the same topic, is a question of some

social considerations, in a sense, which are

involved in relation to the question of the ambit

of an indemnity and, Your Honours, those are set
out in Mr Cachia's lengthier written submissions in
paragraph 9.7.1 on page 25 through to 9.7.6 at the

top of page 26, where he discusses the position of

a litigant person in various circumstances. So

that if one is speaking about an indemnity it is a

question, in a sense, of what the indemnity is for,

Cachia(2) 64 16/6/93

and that takes one back, we would submit, to the

question of loss of time and loss of opportunity.

Your Honours, the third matter with which I

wish to deal is a question that was posed by

Your Honour Justice Brennan, which was I think to

this effect: is there an underlying theory that

costs is the means by which courts secure legal

representation? Your Honour, could I say this:

there is no doubt that costs may facilitate legal representation, but to place that at the level of

an underlying theory, in our submission, would be

to go rather too far, and one can test it by the

position in the United States, where there has been

an enthusiasm of legal representation, one might

say, in jurisdictions where costs are not awarded,

and that would seem to militate against the notion

that costs would perform the function that

Your Honour posited as a possibility. Even in

Australia there are jurisdictions where costs are

not allowed or are allowed only in exceptional
circumstances, frequently in industrial

jurisdiction, but where lawyers are very frequently

retained to appear in such matters.

Similarly, the gap between solicitor and

client costs and party and party costs does not

seem to deter people from engaging lawyers to

appear for them.

Your Honours, a better justification, we would

submit, is that the law recognizes that people are

not all able, for a great variety of reasons, to
present their own cases. It may be purely
questions of time, it may be questions of ability,
it may be questions of .age, and all sorts of

reasons, and that it is a reasonable thing for them

to engage lawyers. Part of the result to them, if

I could use a neutral expression, of the litigation

is that it is a reasonable thing to do so and it

have an award of costs. is, in that sense and for that reason, that they Your Honours, might I turn to our learned

friend's submissions, written submissions - - -

BRENNAN J:  Mr Jackson, before you turn to those could I

just ask you this: have costs ever been awarded to

a party who has been represented by.a solicitor who

makes no charge?

MR JACKSON:  Your Honour, I cannot give an instance of that.

"Makes no charge", of course, contains within it a

number of possibilities. I take it Your Honour

means "will not in any event charge"?

BRENNAN J: Well, acts gratis.

Cachia(2) 65 16/6/93

MR JACKSON:	Yes.
BRENNAN J:	I have just been looking at an earlier case of

Inglis v Moore, 25 ALR 453, which dealt with the

entitlement of a party to have costs when that

party was represented by the Crown Solicitor, but

there was a reference there to a quotation from a

Victorian case referring to Gundry v Sainsbury,

(1910) 1 KB, where no expense at all was incurred

in the employment of a solicitor and it seemed that
no order for costs was made.

MR JACKSON: Well, Your Honour, all one can say about such circumstances is, first, they would be relatively

uncommon, and the second thing is that one would

expect that, in most cases where a person had been

represented for nothing they would not be seeking

to obtain anything in respect of things other than

outgoings in respect of the case. Now, if I could

just pause to say, one would expect in a case like

this that in this Court the main costs might well
be the quite substantial outgoings of filing the

application for special leave and the notice of

appeal and so on.

BRENNAN J: If your argument is right, is there any reason

in principle why an order for costs in a case where

a party is represented by a solicitor and counsel

should not include an item for the party's own time

involved in contributing to the preparation of the

case and getting it up?

MR JACKSON:  No, Your Honour, there is not. Not as a matter

of principle. Quantification and the question whether it was necessary or proper, but in the

particular case might start to loom large. But one

sees in Australian Blue Metal Ltd v Hughes - that

was a case where the parties were represented, and

what was thought to be a reasonable thing by the

judge on appeal from the taxing officer, was that

they should be allowed the amount which represented

the costs, in effect, of them being present at the

trial.

TOOHEY J: Being present at the trial?

MR JACKSON:  Being present at the trial and not just for the

purpose of being there as witnesses.

BRENNAN J:  What is the difference then, between party and

party, and solicitor and own client costs?

MR JACKSON:	It depends, in a sense, on the degree of luxury, and I use the word, in a sense, in inverted
commas in the context in which it tends to appear.
One would need to look at each rule to see
precisely how the solicitor and client rule is

16/6/93

cachia(2) 66

expressed, but in the ordinary course of events, a

more objective and tougher test is used in the case

of party and party costs, and a more free and

luxurious, if I can use the word again, test in the

case of solicitor and client. It is really a
question of the magnificence, in a sense, of the
allowance, as distinct necessarily from the

subject-matter of the item. It may be both, but it

may well be just one.

McHUGH J:  Mr Jackson, the Gundry case to which

Justice Brennan referred to you, was a case where

the pl~intiff recovered a verdict of 15 pound but

had made an agreement with the solicitor that he

would not be charged any costs, and they were

unable to recover costs, the precise ground was the

indemnity principle. It seems to me at the moment

that the solicitors' cases are wrongly decided and

that the real question is whether, having been

decided, they should be extended because I also

have difficulty distinguishing the solicitor's case

from the cases of litigant in person.

MR JACKSON:  Your Honour, the feature that is striking about

a solicitor's case and the cases which set out the

rule is that really what one does - sorry, may I

start again: one does not see, until I think,

Your Honours, Buckland v Watts, and I put to one

side the really rather curious case of

Anthony v Walshe in Ireland to which I will return shortly.

McHUGH J: She was a vexatious litigant apparently.

MR JACKSON:  The case is a very difficult one. What

Your Honour says may well be right but there are

two other features about it I wanted to mention.

If one puts that to one side, it really seems to be

Buckland v Watts which is the case that says that

the litigant in person cannot recover these items

as distinct from other cases which say, for

example, a represented litigant cannot get anything

other than witnesses expenses, or that say a

solicitor who is a party may recover, but one

really tends to see the principle laid down so far
as it is a principle against us in cases which

establish the principle in respect of solicitors.

So that one cannot really say.that that is the

excrescence which should be excised because the

principle comes with it. So that, Your Honours, it

is then, as Your Honours put to me, a question

whether that the principle established, let us

assume in respect of solicitors, should be

extended, and that is where one comes to the

question of what - I will come back to this in just

a moment - is really the underlying injustice of

Cachia(2) 67 16/6/93

the present rule so far as concerns litigants in

person.

Your Honours, might I perhaps, before coming

to that a little more fully, say two things. If

one goes to item ld of our learned friend's

submission on page 2, it said:

It would be unfair to impose upon an

unsuccessful litigant an inordinately high

cost merely because his opponent is highly

paid -

highly paid as an employee, for example. But in

most cases, of course, the situation is likely to

be the reverse. Costs are likely to be lower in

the case of a litigant in person in most cases
because ex hypothesi there will be no counsel's

fees and there will be no solicitor. In most cases one would expect the fees to be lower or the amount

to be lower.

Your Honours, in relation to item le, if

difficulties were to appear in the quantification

of these costs, then surely there would be no

difficulty in promulgating a scale which would take

care of it.

McHUGH J: But, Mr Jackson, assuming that you succeed on the

point of principle, why should you not approach the
question of cost on the basis of some form of
reasonable remuneration rather than compensating

the litigant in person for his particular loss of

time?

MR JACKSON: Well, Your Honour, often the two would be the

same thing.

McHUGH J: Well, that may be, yes.

MR JACKSON:  What I am seeking to say is that in some cases

it would be appropriate for it simply to be a

question of the actual loss, and Your Honours have

seen the way in which Mr Cachia framed his

affidavit to say, "I've lost the opportunity to

make these sums of money", but in many cases it

would seem to be perhaps an arbitrary rule to have

that you just got whatever actual loss you could

prove because on many occasions, one would think,

in respect of people who do not work, do not work

to their complete capacity and so on, the reality

of the situation is that instead of being able to

do what they want to with their time, they have

been put in a situation where they are compelled to

be involved in the process of the litigation.

Cachia(2) 68 16/6/93

So the question is: do they get something for

their loss of capacity, if I could perhaps use that

expression, to do what they want to with their

time, which may be, for example, to go to England,

to go to Western Australia to see a daughter or

something along those lines but instead they are stuck, for example, defending proceedings in New

South Wales or Victoria.

In those circumstances, should they get

something in respect of that? That is why,

Your Honours, we would put it on the basis that in

realit"y what one is looking at is the loss of the opportunity or the loss of the time that a person

has which will in many, perhaps most, cases be

represented by the loss of the income that might

have been available to them.

DEANE J: Here Mr Hanes denies that your client has lost any

income at all. On your approach, should there be a

hearing to determine whether, as your client

claims, he has lost income or, as Mr Hanes claims, his income is from investments and he has not lost

any income at all, or is that irrelevant?

MR JACKSON:  Your Honour, the way in which it would be

disposed of, in our submission, would be this: the

conceptual notion underlying it, if I can put it

this way, would be to say that Mr Cachia is
entitled to something in respect of his time. He

has said in his affidavit that he would have been

able to use that for the purposes of his practice

and charge it out at, I think, $85 an hour. In ·a

taxation, of course, one has to really start

somewhere; that is objected to.

DEANE J: It is not only objected to; it is denied. It is

said it is untrue.

MR JACKSON:  Yes, of course. I mean there has to be a

hearing if there is some contention, if that is
said not to be true.	So the taxing officer has to

conduct that hearing. Now, let us assume that at

the hearing he takes the view that Mr Cachia, for

example, was working only part of the time, or

there was a shortage of work and he might not have

got work.

DEANE J:	Can they call evidence?
MR JACKSON:	Yes, Your Honour.

DEANE J: What, you could have a five day trial about

whether Mr Cachia had, in fact, lost any income

and, if so, how much?

Cachia(2) 69 16/6/93

MR JACKSON:  Oh, Your Honour, I mean if there were to be an

issue of the fact - Your Honour, I do not want to

get into the five days, really, with respect.

DEANE J: It sounds like five days to me, the way things go

these days, Mr Jackson.

MR JACKSON:	Oh, Your Honour, well - - -
DEANE J:	I mean, you have got all these days, you have got

one man saying that he has lost all this income,

another man saying, "I am his neighbour, he has not

lost a penny". They will each call their wives,

they will each call the next door neighbours.

MR JACKSON:  Your Honour, if I could just say something in relation to that. The case to which we referred

earlier makes it quite apparent that for a very

long time disputed issues of fact have to be dealt

with by the taxing officer. And indeed, Your

Honour, there is absolutely new in that and they

may take a while, and the basis of that decision

was that cross-examination had not been allowed -

oath against oath. Your Honour, it just happens

and, Your Honour, one should not blacken the dog by

saying it will take five days. It may be over in a

day, it may take half a day. But, Your Honour,

five days gives it a colour, with respect.

The other thing, Your Honour, we would say

about it is: let us assume that at the end of the day, or the many days, the taxing officer came to

the view that he would not have got work, or would

not have got work for all that time, then we would

submit, that would not be the end of it; he would

still be entitled to something in respect of his

lost time.	Now, the quantum of that would be a
matter for the taxing officer.	He might do it by

reference to figures in schedule G, he might do it

by reference to a number of other matters.

McHUGH J:	You keep using the expression "loss of time" as opposed to "work done".	Have you got a - - -
MR JACKSON:	Your Honour, I am sorry, I have used the expression "loss of time".	I do not know that I

was using it as being opposed to "work done", and I
am not quite certain what Your Honour means by

"work done" .

McHUGH J:  The work done for the purpose of preparing a

case, and you get compensated for that work, not

for the value of the time that you have lost, which

you may have been able to put to much more

profitable purposes.

Cachia(2) 70 16/6/93

MR JACKSON:	Your Honour, what I was really seeking to identify was what he would be compensated for.
Now, he was compensated for loss of time in doing a
particular thing.  Now, if it be .that he took an
unduly long time to do it, then of course he does
not get anything in respect of the excess. If it
be that the amount that would be obtained by
applying some figure of a number of dollars per
hour to what was done, produced a result that was
bizarrely high, then no doubt he does not get it because it is not proper, for example.
McHUGH J:	I appreciate that but, assuming you went under

the point of principle, why would you not test it

by saying, "Well, what would be reasonable

remuneration for an unqualified clerk to have done

this work"?

MR JACKSON: Well, Your Honour, that is a possible approach

and no doubt that might provide some guidance on

perhaps a question of quantum, but one has to bear

in mind, of course, that it might be the kind of

work that a lawyer's clerk would not ordinarily be

engaged to do.

McHUGH J:  I know, that is one of the difficulties about

that.

MR JACKSON:  Your Honour, I do not doubt there is. All I am

seeking to say is that it may be that the

appropriate range is indicated by something like the schedule, but it does not necessarily follow

that the figure that would be the amount in respect

of any item would be the amount that one would give

to the person straight off the street, as it were. When I say "the employees", solicitors' employees,

straight off the street.

DEANE J:  Do you have to adopt the approach that in theory

is applicable to legal professionals, and that is

if, in fact, they have wasted time or the work they

have done simply was not of a professional

standard, the taxing officer has a discretion that

they do not get paid for it? When it is in person,

do you apply the legal standard, or does that

approach not apply, or is there an "in person"

standard that needs to be introduced?

MR JACKSON:  It would be difficult to sustain the

proposition that whatever time they.took to do

something is something that is recoverable,

difficult to sustain that because one does have to

go back to the rule and the costs which are

necessary and proper. That seems to introduce an

element of objectivity and it means one must relate

those adjectives to the costs. That is the first

thing.

Cachia(2) 71 16/6/93

It does not necessarily follow, however, that

the maximum that a litigant in person might get in

respect of any item is necessarily the maximum that

would be given to a solicitor. Your Honours, what

one has to bear in mind is that one is speaking

about costs; one is speaking about what is

necessary and proper, and one has to take into

account the fact that costs may be the costs of

either a lawyer or a litigant in person. And

whilst as a general rule of practice it might be

the right thing to say, "Well, a litigant in person

should not get more than a solicitor would get for

doing the same thing.", on the other hand, it might

be appropriate to say, "Well, for the first time

the litigant in person had to prepare his own

affidavit he would get so much. The second time he

should have learned something from the first about

how to do it."

McHUGH J: That is one of the problems. The first time I

ever had to draw the equivalent	of a statement of
claim it took me a weekend; two	years later I used
to do 20 or 30 a weekend.

MASON CJ:	I wonder how many were demurrable.
MR JACKSON:	I take it Your Honour's fees diminished, per

item. If Your Honour had been doing them at a time

when the word processor had been as fashionable as

it is now, the numbers may have multiplied, of

course.

Your Honours, might I move to item 5 in our

learned friend's written submissions, where it is

said:

The claim for loss of earnings is but another

way of claiming "professional costs".

Your Honours, we would submit that is not so, that

it is not a claim for professional costs under
another name. If one takes a case such as this,

for example, where an injunction is sought - now,

if an interlocutory injunction is sought the person

served with the papers may go to court personally

to defend themselves and that person may succeed by

argument in defeating the claim for the injunction. They get nothing for their time unl_ess they happen

to give evidence, or unless they happen to have had

some legal qualification, presumably legal

qualification as a solicitor and, Your Honours,

that is so even if, in the course of doing it, they

lose a day's income.

Now, Your Honours, one would then, in Australia, come to rather strange results. In the

case of a person who was, say, admitted as a

Cachia(2) 72 16/6/93

barrister in Queensland, but had never been

admitted as a solicitor, but was a litigant in

person, that person could not recover the legal

costs. If they had been admitted as a solicitor in

Queensland but did not practice, they could recover

the costs. If they were a solicitor and barrister

somewhere else they could not - perhaps they could. But, Your Honours, it would produce very

strange and curious results and, really, results

which are so arbitrary and unjust. In our

submission, the result in cases of that kind is

really one which is sufficiently unjust to the

litigant in person to make the Court reconsider the

present decisions.

Your Honours, so far as Anthony v Walshe is concerned, (1988) 22 LR (Ir) 619, may I just say

two things about it. First, at the bottom of

page 620 and 621, Your Honours will see that any event - you will see a number of her cases

listed - and perhaps the court's patience was

passing a little. But what one does see at

page 622 in the third and fourth last lines is the

passage to which my learned friend referred:

A defendant who appears in person is in a

different position which it is not necessary
to discuss.

What that seems to mean, we would submit, is this: if one goes back to the preceding paragraph, it

sets out the provision of the rules which required

a plaintiff, as she was, to have an address in

Dublin, an address for service. That is why

Lord Ashbourne was there saying:

Now there the rule indicates fully that a

plaintiff suing in person shall not subject

the other side to the inconvenience ..... A

defendant who appears in person is in a

different position which it is not necessary

to discuss.

No doubt the underlying theory was that the

defendant was a person who was brought to court in

effect by the other side and they chose to sue the
defendant, and so the defendant might well be in

the position of being entitled to ootain travelling

expenses.

Your Honours will see the unsatisfactory

nature of the decision itself, in our submission,

by going to the reasons for judgment of

Lord Justice Barry at the bottom of page 625.	In
His Lordship's short judgment, particularly

Cachia(2) 73 16/6/93

commencing at the fourth line on page 626, it is

very difficult to see, we would submit with

respect, how there was any reasoned answer to the

proposition he put there, that he entertained -

a doubt as to whether, as a matter of justice,
a plaintiff suing in person who is -

brought up by the other side to defend particular
proceedings should not have their travelling costs

of doing so and, Your Honours, what we would submit

is that it is really difficult to see why, in that

case, there was not some order made giving her some
of her costs even if the trip was thought to be

excessive.

Could I just say four more things, and very

briefly. The first is that my learned friend said

that there did not seem to be a case involving a

barrister, and that is literally true in terms of

the lawyers exception. Because of peculiar rules

about barristers being able to appear on their own
account in relation to their fees in England, there

does seem to be such a case now, Reg v Boswell,

(1987) 1 WLR 705.

The second thing is that the position of

companies and bodies which employ solicitors and

their ability to claim costs is dealt with in

New South Wales now by section 119(2) of the

Legal Profession Act, (1987).

The third, Your Honours, is that in relation to the New Zealand case of Lysnar, my learned

friend's argument in paragraph 8 says the English

case would have applied. In fact, if one looks at

page 562 of Lysnar, all that really appears is that

there was an endeavour by the court to summarize

what was a possible view of the English cases,

without at the same time applying them to New

Zealand because of the different cost structure

there.

Finally, Your Honours in Chorley, in the Divisional Court, one there sees in the judgment of

Justice Watkin Williams a summary, a fairly short

summary, of the several statutes which dealt with

costs, and it is in relation to what was said by

Your Honour Justice Toohey, and includes the

statute which provided for there to ·be costs in

favour of defendants as well.

MASON CJ: Mr Jackson, do you wish to say anything about

costs? Mr Bennett has said, having regard to the

way in which the special leave application ended,

and the fact that counsel were appearing without

Cachia(2) 74 16/6/93

fee, this is not a case in which an order for costs

ought to be made.

MR JACKSON:  Your Honour, our instructions are to seek costs

in the proceedings. The quantum of those costs may

be a different matter, of course, but we recognize

that a coin has two sides. But Your Honours will

see from the larger submissions of Mr Cachia in

paragraph 8.4 and 8.5 that he refers to the fact

that, for example, the court fees alone amount to

$1000. Of course, the parties chose to be

litigants in person, but the proceedings are here

now. The ordinary rule really would follow, we

would submit.

MASON CJ:	Do you want to say anything on costs?
MR BENNETT:	May I just say one thing, Your Honour, in

answer to one question Your Honour Justice Brennan

asked my learned friend in relation to the costs of

a party who assists his lawyers having engaged

lawyers, and the costs incurred by the party in

doing that. That is touched on in the two 1833

cases although somewhat indecisively in Dowling

Reports at the top of page 5 of my submissions, and

only note that in each case the side note is

somewhat inaccurate in summarizing the very brief

judgments. Neither really decides the question but

they are the only cases we have found which refer

to that issue. If Your Honours please.

MASON CJ:  I should say that the Court is indebted to

counsel and to the legal representatives for the

assistance they have provided in circumstances

where the Court has been informed. They are

providing that assistance without fee. The Court

will consider its decision in this matter.

AT 3.47 PM THE MATTER WAS ADJOURNED SINE DIE

Cachia(2) 75 16/6/93