Cachia v Hanes

[1992] HCATrans 120

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll6 of 1991

B e t w e e n -

SAVIOUR LAURENCE CACHIA

Applicant

and

KENNETH HANES and NOLA HANES

Respondents

Application for special leave

to appeal

MASON CJ TOOHEY J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Cachia 10/4/92

AT SYDNEY ON FRIDAY, 10 APRIL 1992, AT 3.37 PM

Copyright in the High Court of Australia

MASON CJ:	Mr Cachia, you appear in person in this matter?
MR S.L. CACHIA:	I appear in person, yes, Your Honour.
MASON CJ:	And Mr Hanes, you appear in person also?
MR K. HANES:	I do.
MASON CJ:	Mr Cachia.
MR CACHIA:	Your Honours, I rely in the main on my affidavit

in support, which is at the application book

page 53. Also on my grounds of appeal which are as

stated in my draft notice of appeal which is at the

application book page 60.

MASON CJ: Yes.

MR CACHIA:  I submit that the evidence in my affidavit in

support and my grounds of appeal are sufficient to

found my application for special leave to be

granted. However, if Your Honours wish to hear me

further before you decide on my application, I have

prepared very lengthy submissions which I shall put

to you if you so please.

MASON CJ:  We think we understand the case that you are presenting. We have read carefully the affidavit

in support and the grounds of appeal. We have also

read the materials in the application book,

including the judgment appealed from, so that I do

not know that we would want you to elaborate

further on what you have put to us.

GAUDRON J:  I would like to ask you this, Mr Cachia: the

question of engrossment or typing seems really to

be a matter of no great importance.

MR CACHIA:  No, I included that because it gives my case a

broader base, Your Honour.

GAUDRON J: Yes. It is not a matter with which this Court

would normally concern itself. The second matter I

wish to raise with you was this: the question of

your travelling expenses. Was that a matter that

arose in relation to the application to extend the

grounds of appeal or was that encompassed in the

appeal as such?

MR CACHIA:  No, that was encompassed in the appeal, because

that is out of pocket expenses.	However, it was
refused.

MASON CJ: Thank you, Mr Cachia. Mr Hanes, what do you have

to say in response to this application?

Cachia 2 10/4/92

MR HANES:  I really have very little to say, Your Honour.

This matter has been heard now, I think, seven times. Mr Cachia has appealed. I accepted the

decision of the original court.	I believed the
original bill of costs was exorbitant.	I

acknowledge the fact that I do have to pay

something. As a litigant in person I acknowledge

that I should pay out of pocket expenses.

I challenge Mr Cachia's claim for loss of

income. He is claiming that he is a structural

engineer and as such he is claiming $85 per hour.

I do not believe that is where he gets his income

at all. I believe his income that he earns is

purely from the properties which he owns and rents

out and from dividends from his investment. So

therefore I do not believe that there is any loss

of actual income. Not that income should have been

included because the court case, as stands, that is

Buckland v Watts, really only grants out of pocket expenses. There were a number of out of pocket expenses claimed, ie, serving papers on myself,

which could have been served by post. Mr Cachia

seems to have claimed the maximum in all categories

and I just think the actual bill of costs to be

originally about $9700 was a bit exorbitant and I

accepted the taxing officer's figure of $1200

roughly, which has not gone up to about $1700.

My main thing is it has been with the courts.

We have been through the supreme court, we have

been through the Court of Appeal. Mr Cachia seems

to rely on the dissenting opinion of

Mr Justice Kirby. There have been many other

judges involved in this: Master Gressier, two

taxing officers; we just seem to be going on and

on.

MASON CJ:  I follow that, Mr Hanes, but you will appreciate

that this Court is guided in determining whether it

will grant special leave to appeal or not by

reference to the existence of an important question

of law and the question whether a litigant in

person is entitled to recover expenses of the kind claimed by Mr Cachia is a not unimportant question.

MR HANES:  No, I do not disagree with that whatsoever. I do

concern myself with the fact that out of pocket

expenses or loss of earnings have got to be

verified and justified. To this stage there has

been no proof; it has always been written down, and

I believe this case of mine is only being used as a

leverage in the case that Mr Cachia has still going

with Cachia v Isaacs, and I believe that the

decision that is handed down here would flow on to

Cachia v Isaacs.

Cachia	10/4/92
TOOHEY J:	Were you represented at some stage, Mr Hanes, by

solicitors?

MR HANES:  In the very first instant, when we first went to

court, I was represented. I had gone to our local

council before I went to court and subsequently they said, yes, employ a solicitor and go ahead,

and I did.	When we lost the supreme court, I
accepted that that was the decision.	The next
thing that came up was a bill of costs.	I had to

object to that. There was no ifs or buts. It then

became clear that it was going to be a major cost

factor. For the first few court appearances I did

not realize I was being challenged. As far as I

was concerned, it was Mr Cachia challenging

Mr Jupp, who was the taxing officer. I had

accepted it. It just seemed to be the appeal, and

it was not until the last court case that really it

came back that I should have been asking a lot of

questions long before then. Does that answer?

TOOHEY J: Yes, it does. I suppose your concern is that you

do not really want to be caught up in an appeal to

the High Court to resolve a question that is

important but which, in a sense, does not really

affect you a great deal, at least to the point

where you do not want to be involved in whatever

costs may be incurred in appearing before the High

Court.

MR HANES:  Obviously I really do not want to be in the High

Court or the supreme court or the Court of Appeal.

TOOHEY J:	Or any court, I suppose.
MR HANES:	I have accepted the decision.  What does worry

me, though, is that I seem to be the pawn to be

used for something else.

TOOHEY J:  Has the question of legal aid arisen or -

MR HANES:  I would not even ask for it. To me, when we

first went to object to the statement of claims, it

was on Buckland v Watts, so I just based my

argument on Buckland v Watts and that was really

clear cut. Every decision that has been given

seemed to have supported Buckland v Watts, but we

always seem to come up with an appeal.

MASON CJ: There is no obligation upon you to appear on the

appeal. Of course, that would mean that the

argument presented by the appellant would have no

opposition to it.

MR HANES: That is right.

Cachia 4 10/4/92

MASON CJ:  So I hesitate to say to you that there is no

occasion for you to appear on the appeal.

MR HANES:  No, I acknowledge that.

MASON CJ: That is assuming we grant special leave.

MR HANES:  I look at the principle and the principle may be

that litigants in person are entitled to receive

some form of compensation.	The law already stands
they are entitled to out of pocket expenses.	The

law does not provide them to be reimbursed for loss

of earnings at this point in time, and if it were

to go that way, then those loss of earnings would

have to be justified, would have to be proved - - -

TOOHEY J: This Court would not, if special leave were

granted, be involved in the task of assessing

costs. There is a question of principle involved

and that is the question which the Court would have

to determine.

GAUDRON J:  The matter would eventually have to go back to

the taxing officer to determine whether or not the

amounts were established.

MR HANES:  I think the taxing officer

TOOHEY J: Which would give you your ninth court appearance.

MR HANES:  Yes; I have got grey hair lately. I believe the

taxing officer has considered it all.	I believe
Master Gressier considered it.	I believe the

supreme court judges considered it.

MASON CJ:  Mr Cachia, what is the state of play in this

other case, Cachia v Isaacs, which, according to

Mr Hanes, is going to be the beneficiary of any

ruling that you get in this case?

MR CACHIA:  Mr Hanes is incorrect in saying that,

Your Honour.	Mr Hanes, supposing I am successful
in this Court, would face about four bills.	The

original bill in the equity division, then the

costs of the taxation, the costs before the master,

the costs in the Court of Appeal and the costs in

this Court. So Mr Hanes cannot argue that the

matter before this Court does not involve him. It involves him very much. It is true that there are

other bills involved in another firm of solicitors

which will be affected by this decision, but that

is a by-product of the principle that is perhaps to

be considered by this Court. Mr Hanes opposed my

bill of costs all the way along, before the taxing

master, before the reviewing judge, before the

Court of Appeal. He sued me. I had to incur costs

to defend myself. He paid presumably several

Cachia 5 10/4/92

thousand dollars to his lawyers.	I so far have got
nothing in payment for my costs.

MASON CJ:  What is the amount of costs that is in issue in

this appeal? Assume you win on the issues raised,

how much would you expect to get?	What are you
claiming?

MR CACHIA:  Now that the matter has reached this stage,

there would be about $45,000, maybe $60,000

involved. That is what Mr Hanes would have to

face. That is at a conservative estimate,

Your Honour, because this matter went on; it is a

very complex matter; it took a lot of time;

mentions; objections before the taxing officer;

hearings and so on. I have lost a lot of time on

this case and I have got nothing so far because the

Court of Appeal has held that they are bound by the decision in -

GAUDRON J:  Mr Cachia, am I right in understanding that if

we put the engrossing issue to one side, there are

really only two issues: one, what we will call loss

of earnings for the time involved in defending yourself and, secondly, out of pocket expenses

being travelling money, is that right?

MR CACHIA:  No, Your Honour. The portion that was allowed

in the Court of Appeal was, by the error of the

court, limited to four specific items in the bill.

In the bill itself there were several similar items which the Court of Appeal, by error, did not cover

and the taxing officer, when it ~as referred back

to him, would not cover because :1e had specific

guidelines from the court not to cover any other

item except the four decided by the court.

However, you are correct in saying that the

travelling expenses is one issue; the time I have

spent in court for mentions, as well as for

hearings, is another issue.	But there is also
things like witness expenses involved.

GAUDRON J: For yourself?

MR CACHIA: For myself.

GAUDRON J:  As distinct from your time in court, or you say

alternative to that.

MR CACHIA:	As distinct from that, yes.
GAUDRON J:	Do you say that if you were allowed for your

time in court, would your witness's expenses arise?

MR CACHIA: They would still arise because the witness's

expenses I am including, time to swear

affidavits - - -

Cachia	10/4/92
MASON CJ:	But do you mean swearing the affidavits or

preparing the affidavits?

MR CACHIA:  Swearing them, yes. The time involved in go to

find a JP, having the affidavit sworn in front of

the JP and returning back to my office. That is

time which I would consider to be witness expenses.

There are several important issues in this case.

The very fact that a bill of a litigant in person has never been decided, to my knowledge, not only

before the High Court of Australia but anywhere

else, because - - -

GAUDRON J: We understand that. It was really a question of

ascertaining precisely what was comprehended in

your application. It was not entirely clear from

your grounds of appeal.

MR CACHIA:	Does Your Honours want to hear me further?
MASON CJ:	No, but I should say to you that as at present

advised the Court has it in mind to grant special

leave to appeal but to confine it to your claims in

respect of costs being loss of earnings and out of

pocket expenses related to travel. But not beyond

that.	Now, they cover the major part of your
claim.

MR CACHIA:  I would request the Court also to extend it

leave to include the errors by the Court of Appeal

in not having the items that were allowed in that

court cover similar items in the bill. Obviously

it is an error which is glaringly incorrect because

if the Court of Appeal has already allowed one
item, then another item in the bill which is of a

similar character should also be allowed.

MASON CJ: Yes, but we are merely concerned with questions

of fundamental principle, Mr Cachia, and that is

the reason why we have it mind to confine the

appeal to those two issues.

MR CACHIA:  I leave it to Your Honour.

MASON CJ: Very well. There will be a grant of special

leave to appeal but it will be confined to your

claim for costs in relation to loss of earnings and

out of pocket expenses being travelling expenses.

I should also say that the Court should draw

to the attention of the parties the distinct

possibility that the Court will make no order for

costs in relation to the hearing of the appeal.	I
do not say that that definitely will be the case,
but it is an outcome that the Court has in mind as
a possibility.

Cachia 10/4/92

Secondly, I would suggest to both of you,

Mr Cachia and to you, Mr Hanes, that you should

approach the Registrar of the Court with a view to

ascertaining whether it is possible to have counsel

assigned to each of you so that the case will be

argued by counsel when it comes on for hearing and

I mean without cost to either of you.

AT 4.00 PM THE MATTER WAS ADJOURNED SINE DIE

Cachia 10/4/92