CACHIA v ISAACS AND ORS [1989] NSWCA 31

CACHIA v ISAACS AND ORS

SUPREME COURT OF NEW SOUTH WALES

KIRBY P, SAMUELS and CLARKE JJA 31 May 1988, 23 March 1989

[1989] NSWCA 31

COSTS — litigant in person — succeeds in appeal — awarded party and party costs — bill of costs taxed — taxing officer disallows items for photocopying; typing; service fees; conduct monies; attendance fees; and other expenses — Grove J, on review under Pt52 R62 SCR, dismisses appeal — on further appeal to the Court of Appeal (by leave)

HUMAN RIGHTS — access to courts — litigants in person — cost rules — entitlement to recover out of pocket expenses and costs involved in attending court in own interest

held: (1) (By the Court)

The taxing officer's discretion had miscarried and the appeal should be allowed requiring the officer to reconsider the costs conformably with the decision of the Court of Appeal;

(2) (By Samuels JA, Clarke JA concurring; Kirby P contra) The discretion miscarried because, although the litigant in person was not entitled to an allowance for preparation or attendance at court, he was entitled to recover actual out of pocket expenses for typing, service of documents, etc;

(3) (By Kirby P) A litigant in person is entitled under Pt52 R23(2) SCR to recover all such costs as are necessary or proper to the preparation of the case and English or other authority to the contrary should not be followed. The London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872; Buckland v Watts [1970] 1 QB 27 (CA) and Guss v Veenhuizen [No 2) (1976) 136 CLR 47 referred to and followed by Samuels and Clarke JJA; distinguished by Kirby P.

International Covenant on Civil and Political Rights, Art 14.1 referred to by Kirby P. Interpretation Act 1897, s11A(2). Supreme Court Act 1970, s19, s101(1)(c) and s101(1)(d). Costs in Criminal Cases Act 1973 (UK) Litigants in Person (Costs and Expenses) Act 1975 (UK). Supreme Court Rules, Pt52 R23(2); Pt52 R62.