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. Kirby P Litigants in person have played a sometimes important part in the history of our legal system. Occasionally their cases have helped to establish important principles of law. See eg Inglis and Another v Commonwealth Trading Bank of Australia (1969) 119 CLR 334. The appellant is such a litigant in person. He has been involved in a chronicle of litigation, of which-this appeal is but the latest chapter. Perhaps it will be the last. It involves a further step in disputation which has certainly illuminated a number of important aspects of the law. Involved in the present case is the extent to which, upon taxation of party and party costs, an unrepresented litigant, who has received a costs order in his favour, is entitled to recover out of pocket and other costs and expenses incurred by him in representing himself in court. An unrepresented litigant succeeds It is not necessary to recount in detail the extraordinary saga of the litigation between the appellant and the respondents. The litigation extends over many years. Its course is described by Yeldham J in 2 UNREPORTED JUDGMENTS Isaacs and Others v Cachia [1981] 2 NSWLR 92 at 93 ff and by Hope JA in Cachia v Isaacs and Others (1985) 3 NSWLR 366 at 372 ff. Put shortly, the appellant engaged the respondents, a firm of solicitors, to represent him in District Court proceedings in which he was ultimately unsuccessful. He received an account for the respondent's fees. He applied to the Consumer Claims Tribunal for relief. It held that the respondents had been negligent in the performance of their retainer. The Tribunal made an order that certain monies be paid by them to the appellant. Whilst these proceedings were continuing, the respondents taxed a bill of costs in respect of the District Court proceedings. The certificate being unpaid, the respondents commenced proceedings in the Court of Petty Sessions (as it was then called) to recover the costs payable under the certificate. The appellant sought to defend those proceedings on the basis that no monies were payable. He relied upon an issue estoppel which he said was established by the earlier finding of the Consumer Claims Tribunal. Ultimately, a magistrate entered judgment for the respondents for their costs. The appellant requested that the magistrate state a case for the opinion of the Supreme Court on a question of law. This case came before Wood J. He upheld the magistrate's decision to enter judgment. The appellant then sought leave to appeal to this Court. Leave was granted. He succeeded in the appeal. The order of the Court was, as provided in the judgment of Hope JA, that the respondents should pay the costs of the appeal to Wood J and to the Court of Appeal. The plaint and summons, issued by the respondents in the Court of Petty Sessions, were dismissed. The proceedings were remitted to the Local Court, as successor to the Court of Petty Sessions, to dispose of the costs of the proceedings in that Court. Taxation of costs and review Following the orders in his favour for the "costs" of the proceedings before Wood J and before this Court, the appellant prepared two bills of "costs". These were in due course taxed by a taxing officer of the Supreme Court (Mr F Veltro). The two bills claimed party and party costs in the sum of $10,071.60. As a result of the taxation, the bills were brought in at $583.10 in respect of the proceedings before Wood J and $840.60 in respect of the Court of Appeal proceedings. When the costs of each taxation were deducted, the total allowed by the taxing officer was $444 in respect of the proceedings before his Honour and $661.41 in respect of the Court of Appeal proceedings. Pursuant to Pt52 R62, the appellant moved the Supreme Court for a review of the decisions of the taxing officer. The taxing officer gave certain written reasons for his decisions. These were placed before Grove J, to whom the review came for determination. Grove J found no error in any of the decisions or assessments made by the taxing officer. He declined an application of the appellant to refer the matter to the Court of Appeal. He dismissed the motion for review. In the course of doing so, Grove J divided the challenges of the appellant into two broad categories. The first was in relation to what he classified as items of "legal professional work". Relying on what was said in the English Court of Appeal in Buckland v Watts [1970] 1 QB 27, Grove J dismissed the claim of the appellant to have an allowance in respect of work whose "essential nature" was that of a solicitor. He noted that Street J in Kerridge and Anor v Foley and Anor, unreported, 19 August 1970 had allowed an unrepresented litigant a claim for loss of earnings calculated upon the period which the claimant was actually at a hearing before the Court, although not called as a witness. He observed that the URJ CACHIA v ISAACS AND ORS (Kirby P) 3 present appellant had been allowed $142.80 for each day that he attended the hearings. He therefore could detect no error in the approach of the taxing officer in respect of that allowance. So far as the second category of "out of pocket expenses" were concerned, Grove J upheld the decision of the taxing officer that the appellant was not entitled to recover payments he had made for such items as typing, photocopying and the service of documents. These, he held, were not to be seen in isolation. They were steps in litigation. They would ordinarily come under the supervision of a solicitor. They were therefore part of the supply of professional legal services. As such, according to his Honour, they were not recoverable by the appellant from the respondents. A limited grant of leave to appeal The appellant sought the leave of this Court to appeal from the decision of Grove J as required by the Supreme Court Act 1970, s101(2)(c) and s101(2)(d). The application for leave was heard by the Court differently constituted (Kirby P, Mahoney and McHugh JJA) on 13 July 1987. In the course of argument in the leave application, the Court was referred to a decision of the High Court of Australia in Guss v Veenhuizen [No 2] (1976) 136 CLR 47. Apparently on the basis of that decision, the Court, by a majority, declined to give leave to the appellant to argue those items in the taxation which had been disallowed by the taxing officer and which related to charges "in the nature of legal professional attendances", properly so called. I was of the opinion that no authority stood in the way of a wider ambit of leave to appeal. In my view Guss stood for the proposition that a solicitor litigant could recover professional costs. It did not require that a litigant in person, not a member of the legal profession could not recover costs necessarily and reasonably incurred to present his case. I would have given the appellant unlimited leave to appeal to argue the matters pressed by him in challenge to the decision of Grove J. However, the view of the majority became the order of the Court. The appellant was given leave to appeal from Grove J on a limited basis. In effect this was to permit argument on the proper characterisation, for legal purposes, of the "out of pocket expenses" which he had claimed in the taxation of costs and which had been disallowed by the taxing officer. It was upon that basis that the appeal, by leave, came before the Court as presently constituted. At the outset of the appeal (and in his written submissions) the appellant sought to enlarge the appeal to permit him to recanvass the ambit of the limited grant of leave. This application was resisted by the respondents. The appellant asserted that the decision in Guss had been unknown to him before the leave application. He said that it had not been referred to before either the taxing officer or Grove J. He asserted that, on a close reading of the authority of the majority of the High Court in that case, no barrier stood in the way of his recovering items of costs which could be characterised as costs for "the supply of professional services". On the contrary, he contended that the decision in Guss lent strength to his contention that, as a person other than a legal practitioner, engaged in litigation in the Court, he was nonetheless entitled to recover all costs which were reasonably and necessarily incurred by him to present his case to the Court. Again, by majority, the Court declined to enlarge the grant of leave to appeal. Quite apart from the original reasons which had suggested to me that the leave granted to the appellant should be of a unqualified kind, to permit the whole of the matter to be reviewed, I was of the opinion that the appellant should be 4 UNREPORTED JUDGMENTS entitled to argue as he sought because he had been unaware of the decision in Guss when it was raised on the return of his summons for leave to appeal. As an unqualified litigant in person, I did not consider that his ignorance of that decision was unreasonable. Nor did I believe that it should have forbidden him from seeking, consistently with the authority of the High Court, to recover costs reasonably and necessarily incurred, whether incurred as out of pocket expenses or not. However, the decision of the Court was clear. The appellant was confined by that decision to arguing that "out of pocket" expenses rejected by the taxing officer were wrongly excluded from his recovery of costs. I must therefore reserve to a future case the more general question of the exact parameters of the entitlements of litigants in person to costs and losses necessarily incurred in the course of representing themselves in court. Cf the remarks of Hodgson J in Wentworth v Rogers (Respondents: Messrs Sly and Russell), unreported, 30 March 1987, at 20. In the course of dealing with the "out of pocket expenses", it will be necessary for me to make some observations which may have a more general application. However, for the purposes of this appeal, they will be confined to the disallowed items for costs which actually involved the appellant in expenditure loss for the purpose of representing himself and defending himself in court. Out of pocket expenses disallowed The out of pocket expenses disallowed by the taxing officer fall, relevantly, into five categories. They may be described as follows:- Category 1: Typing etc costs Under this category a number of items were disallowed eg:- Item 3 (CA) 15.9.84 typing fee; letter 6.00 Item 5 (CA) 25.9.84 typing fee; notice of appeal, three folios 9.00 Item 5 (CA) 25.9.84 2x10 copies of notice of appeal at.20 each 4.00 There were many such items disallowed. Category 2: Travelling and like expenses Examples in this category are:- Item 9 (CA) 25.9.84 Fee paid to process server to serve notice of appeal on respondent 20.00 Item 31 (CA) 15.10.84 travelling expenses of the appellant to attend court 6.50 Item 91 (CA) 11.6.85 conduct money paid to Consumer Claims Tribunal with subpoena to produce file 2.00 Item 51 (CA) 2.11.84 costs of certified mailing of letter to respondents 1.23 There were several items in this category. Category 3: Purchase of Judgment and Rules Item 24 (SC) Purchase of "Supreme Court Rules" paid 38.50 plus Supreme Court Act 1.84 Category 4: Security for costs charges The taxing officer allowed part of item 44, being a bank fee for the supply of a security. Such security had been ordered by the Court for the costs of the appeal which the appellant first made to the Court of Appeal. However, the taxing officer disallowed items claimed by the appellant under that head for attending the bank to collect the security and travelling expenses incurred in doing so. A number of other items connected with the security were likewise disallowed. They included:- URJ CACHIA v ISAACS AND ORS (Kirby P) 5 Item 83 (CA) 3.5.84 Bank guarantee fee (5.00 per month) 30.00 Item 140 (CA) 24.3.86 Peruse letter from bank dated 14.3.86 re guarantee charges 5.00 Guarantee cancellation fee 30.00 Item 142 (CA) 24.3.86 Loss of income on $4,000 deposited with bank as security for guarantee 4 1/4 per cent per annum of period 1.11.84 to 1.5.86 255.00 Category 5: Attendances at court Item 30 (CA) 15.10.84 hearing of "leave to appeal" 1 day off work 142.80 Item 52 (CA) 8.11.84 attend registry to settle appeal papers and search at Supreme Court Section and Court of Petty Sessions... for missing court file - 1 day off work 142.80 Item 61 (CA) 6.12.84 Attend registry to settle appeal papers, 1 day off work to prepare and attend 142.80 Item 86 (CA) 5.6.85 Attend callover, half day off work 71.40 Item 106 (CA) 5.8.85 Hearing in Court of Appeal | day off work 142.80 Plus travelling expenses 6.50 Item 109 (CA) 9.10.85 Attend court to receive judgment and peruse judgment, 50 pages, half day off work 71.40 plus travelling expenses 6.50 Suggested justification of the disallowance The respondents supported the judgment of Grove J and the taxation by Mr Veltro in their entirety. They did not concede that any of the items disallowed were properly within the order of this Court for the payment of the appellant's "costs" both before this Court and before Wood J. They supported each and every one of the decisions of the taxing officer, and the confirmation of them by Grove J, upon the basis that their disallowance was within the taxing officer's discretion and that it was apparent that he had exercised that discretion by reference to what was claimed to be the correct principle. That principle, according to the respondents, was that a litigant in person may recover, as between party and party, only those necessarily incurred out of pocket expenses (such as for filing fees and the printing of appeal books) but not the value of a single second of the time, or a single cent foregone in earnings by the litigant in person, nor the costs incurred in payments to third persons for work which could have been done by the litigant in person. According to this suggested principle, the items disallowed by the taxing officer were correctly disallowed. The typing fees, copying fees, service fees etc were all fees for work which the litigant in person had sub-contracted to third persons. Similarly, the claims made 6 UNREPORTED JUDGMENTS for travelling expenses, conduct money for subpoenas and costs of certified mail were not in the category of necessarily incurred out of pocket expenses. They were sums paid which would ordinarily fall within the fees paid to a solicitor for appearing on behalf of a litigant. Thus, so the argument went, the litigant in person was denied recovery of such sums because, otherwise, he would be recovering what were essentially costs which would normally be incurred by engaging a solicitor's services. This, the litigant in person was not entitled to recoup. Effective access to the courts is fundamental Leaving authority aside, it is difficult to accept the principle urged upon the Court by the respondents. The entitlement to invoke the process of the courts is fundamental to the proper operation of the rule of law in our society. This principle is one of the foundations of our constitutional and legal system. Unless, ultimately, any individual can invoke the courts, to secure and enforce rights which the law accords (or to defend himself or herself from the actions of others), the claim of adherence to the rule of law and to the protection of rights by the courts is a singularly empty one, the more offensive because it is so frequently repeated by judges and lawyers. The right of access to the courts is a fundamental human right in a society such as ours. It is recognised in Article 14.1 of the International Covenant on Civil and Political Rights, which Australia has ratified. Relevantly, that article provides:- "14.1 All persons shall be equal before the courts and tribunals. In the determination of... his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law..." People would not be equal before the courts and they would not, in the determination of their rights and obligations in a suit of law, have a public hearing by an independent tribunal, if unnecessary and unreasonable impediments were placed in the way of access to the courts by rules of the common law which effectively penalised them for appearing for themselves. In the present case, it may be that the appellant chose to appear for himself. But, it is possible that he did not. Even today there are many who cannot secure or afford legal representation to put their cases to the courts. It is only the appellant's persistence which has secured him ultimate success. It did so only after an obstacle course of litigation in which he has twice had to come to the Court of Appeal for relief. In each case he has been opposed, as in earlier steps in the litigation, by highly competent counsel. His success in each case is, in itself, a vindication of the right of the individual to invoke the courts. Whether legally represented or not, litigants are entitled to have the courts apply to the issues in hand the applicable law without discrimination on the ground that the litigant is appearing in person and is not legally represented. Consideration of the specific rulings of the taxing officer Against this consideration of basic rights, which believe the common law also secures, what possible justification can there be for denying the appellant the recovery of the expenses in the five categories disallowed by the taxing officer? So far as the typing and copying are concerned, it is true that the claimant could have written out copies in longhand manuscript for the Court. But the Court has a well known practice requirement for five copies of documents used- three for the judges, one for the court file and the other for use by the court reporter. To solemnly require the appellant in the circumstances to copy out by hand five-fold every document which might be used not only imposes an URJ CACHIA v ISAACS AND ORS (Kirby P) 7 unreasonable burden upon him. It is also to envisage a burden on the Court which can discharge its duties more efficiently with typewritten documents and photocopies of the requisite number. To suggest otherwise is manifestly unreasonable. The fact that the appellant had to pay third parties for their services of typing and copying does not make those expenses any the less costs which he has reasonably incurred for the purpose of presenting his case. To deny him such costs is effectively to say that he can invoke the aid of the courts, and even win his case, but only at a penalty of paying himself for facilities which are obviously necessary for the efficient disposal of the litigation. If he had had a solicitor, such costs might be subsumed in the professional charges of the solicitor. But as he did not have a solicitor (and as many in his circumstances might not not be able to afford legal representation), the imposition of the effective penalty involved in disallowing recovery of such costs is an effective deterrent to, or inhibition upon, the fundamental right of the appellant to invoke the aid of the courts. It should not be forgotten that the appellant did so in defence of his resistance to a bill of costs pursued by the respondents. He successfully claimed that recovery of such costs from him was barred by a decision in his favour by the Consumer Claims Tribunal. Thus, in this case, the appellant was not asserting a claim. He was defending himself from "vexation" by the respondents, successfully as it turned out. His success would by Phyrric indeed if it were bought at the cost of a burden of out of pocket expenses which, although reasonably incurred by the appellant, were not recoverable from the respondents. It is true that as between party and party some costs are not recovered where those costs are not essential to the proper representation of a party before the Court. In modern circumstances, I do not believe that costs incurred for typing and copying fees are unnecessary or such that they should not be recoverable from the respondents. The same reasoning leads to the same conclusion in respect of fees paid to an agent for service of necessary documents. Likewise, where documents were served by the appellant and he can demonstrate a loss of salary for the time spent serving them, such loss and the travelling expenses which he himself incurred for that purpose would be recoverable. Similarly, conduct money for subpoenas and the cost of certified mail of documents reasonably required to be so certified, appear to me to be entirely proper expenses which should be recovered on the basis that they were necessarily and properly incurred. The taxing officer's rulings in respect of the security which the Court ordered to be paid for the costs of the appeal appear to be inconsistent. It is hard to see a logic in permitting the recovery of the fee paid to the bank for the issuance of the security, but disallowing the fee for the discharge of the security or the loss of income incurred by the provision of the security. As the provision of the security was a price which the Court affixed to the appeal, and as that price necessarily and properly involved the appellant in expense which he would not otherwise have incurred, it is unreasonable to deny him the recovery of these claims. They cannot be denied consistently with the allowance of the fee for the grant of security in the first place. Finally, so far as the appellant's attendances at court are concerned, the logic of the taxing officer's decisions is equally elusive. It may be true that taxing officers disallow, as a general rule, the costs incurred by a litigant attending court with his legal representatives, unless called as a witness. I make no comment on the correctness of such a ruling. Certainly there is no justification for confining 8 UNREPORTED JUDGMENTS the award of such costs of the attendance to captains of industry (as in Australian Blue Metal Ltd v Hughes and Ors [1970] 2 NSWR 119) or a leading gynaecologist (as in Petrunic and Anor v Barnes, Supreme Court of Victoria, unreported, 15 December 1988; (1988) VJB 6). But where a litigant must represent himself or herself, the justification for attendance goes beyond that of mere curiosity in the conduct of the litigation or properly briefing counsel on any shifts in the opponents' case. It is an imperative necessity. Had the appellant not attended before the Registrar for the settlement of the appeal papers, his appeal would not have progressed. Indeed, there might have been a motion to strike it out for non prosecution. Had he not appeared at the call-over to fix the date for hearing, the appeal might not have been set down. Had he not appeared in the Court of Appeal to seek leave to appeal, it is, to say the least, unlikely that leave would have been granted. The various attendances before the Court and its officers were, in the case of this appellant, because he was appearing in person, not luxuries but essential to the effective invocation of the jurisdiction of the Court. The taxing officer allowed him, in all, two days to cover all of his attendances at the Court of Appeal. This was done in apparent reliance upon what Street J said in Kerridge and Anor v Foley and Anor (above). This was inconsistent, as appears to have been acknowledged below, with the principle that a person such as the appellant should not be permitted to recover for costs which would ordinarily be "legal and professional work". It seems that such allowance was treated by the taxing officer and by Grove J as exceptional and based not on any principle but on the authority of the decision in Kerridge. Recovery of costs necessarily or properly incurred These instances, and the injustice that can occur from too narrow a restriction on the costs that a litigant in person can recover, require the refinement of a principle which can guide taxing officials in cases such as the present. In my opinion, the principle is clear. If an expense is necessarily or properly incurred by a litigant in person for the purpose of prosecuting or defending a proceeding in a court, such sum is recoverable by that litigant to the full extent that it would have been reasonably recoverable by a legal practitioner acting on that litigant's behalf. The fact that the expense would, had the litigant been represented, have been categorised as "legal or professional work" does not make the expense any the less "necessary" or "proper". This is because the law is not concerned here to provide, by its costs tules, a protective advantage to legal practitioners which inhibits litigants from appearing for themselves. There are already enough such inhibitions. A penalising cost burden, effectively to discourage justifiable claims or defences, need not be added. Nor is it necessary to add such an inhibition to control the costly extravagances of litigants in person or the unnecessary incurring of expense by those who willingly opt out of the normal procedure of having legal representation before the courts. There is more than adequate protection against unnecessary, unreasonably or improperly incurred costs in the above principle. Such discretions amply cover excessive time taken by a litigant in person when compared to a skilled practitioner. The taxing officer, and on review the court, will disallow each and every expense which is unnecessarily, unreasonably or improperly incurred. But it is not just to add to that requirement, which would be imposed upon the litigant, were he or she represented by a legal practitioner or not, an additional penalty which excludes the recovery of necessary, reasonable and proper costs which the URJ CACHIA v ISAACS AND ORS (Kirby P) 9 litigant in person has had to incur, from his or her own pocket, for default of a legal representative. In particular, I do not consider that there is any overriding exclusion, as the respondents urged, to disentitle a litigant in person from recovering such necessary or proper costs because they fall into a category of "legal and professional work". In the nature of things, expenses will be incurred in the prosecution or defence of litigation by a litigant in person which will fall within that category. To ignore the realities of the disadvantages under which litigants in person already operate, and to deny them the recovery of expenses which they necessarily, reasonably or properly incur, is impermissibly to penalise their assertion or defence of their legal rights. Litigants in person can sometimes be a burden to the courts. Quite frequently they take up more time and involve hard pressed courts in inefficiencies which can be avoided where the parties are legally represented. But sometimes people are unrepresented otherwise than by choice. And sometimes litigants in person are asserting their rights, or defending their interests, precisely because they consider an important principle to be at stake. It may be this perception of principle which steels them to overcome the inhibitions which would daunt lesser spirits on entering the unfamiliar world of the courtroom, there to engage in forensic battles with skilled and trained lawyers where they are usually at a severe disadvantage. Their pursuit of perceived principle may be misguided. Often it is. But, as the instant case demonstrates, it may also be well grounded in the law. It would make a mockery of our assertion of access to the courts, and of our boasts of the rule of law, if we were to add to the psychological and other burdens normally carried by litigants in person the deprivation of recovery by them of actual out of pocket expenses incurred, although they were reasonably or properly so incurred. I do not believe that the common law requires such a conclusion. Moreover, in my view the Rules of the Court require the contrary. Applicable common law principles Counsel for the respondent did not endeavour to justify the legal principle which he advanced, except by reference to authority of long standing. He asserted that this authority, inherited from England, was applicable to the present case. He argued that, if a different principle were to be now adopted, it should be adopted, as it had been in England, by new legislation and not by the refinement by the Court of a principle different from that which, he contended, it had obtained for more than a century. Cf Litigants in Person (Costs and Expenses) Act 1975 (UK). The principle relied upon by the respondent was extracted from the judgment of Brett MR in the English Court of Appeal in The London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 at 875. His Lordship said:- "T should have thought that a person wrongfully brought into litigation ought to be indemnified against the expenses to which he is unjustly put; but there cannot be a perfect indemnity, because it is impossible to determine how much of the costs is incurred through his own over-anxiety. When an ordinary party to a suit appears for himself, he is not indemnified for loss of time; but when he appears by solicitor, he is entitled to recover for the time expended by the solicitor in the conduct of the suit. When an ordinary litigant appears in person, he is paid only for costs out of pocket. He cannot himself take every step, and very often employs a solicitor to assist him: the remuneration to the solicitor is 10 UNREPORTED JUDGMENTS money paid out of pocket. He has to pay the fees of the court, that is money paid out of pocket; but for loss of time the law will not indemnify him." Even accepting this principle as stated, it would appear in the present case to require disturbance of the taxing officer's determination in respect of the actual out of pocket expenses which the appellant necessarily incurred for typing, copying, agents fees for serving documents, bank charges and the like. Furthermore, the holding in the case (which is not binding on this Court) was concerned, as many of these cases have been, with the recovery of costs by a solicitor who defended an action in person. The court there held, as courts repeatedly have since, that the solicitor was entitled to his costs as if he had employed a solicitor, except in respect of items which were rendered unnecessary because he was acting for himself. It was that principle which was affirmed in H Tolputt and Co Ltd v Mole [1911] 1 KB 87, 92 and applied by the High Court of Australia in Guss [No 2] (above). Guss was an unusual and rather special case. Through a registrar's error in the High Court of Australia, the name of a solicitor was not entered in the register of that Court. In 1975, the solicitor had instituted an appeal to the High Court in a case in which he was himself a party. He acted as the solicitor on the record and instructed counsel. The appeal was allowed. The respondent was ordered to pay the solicitor's costs. On a taxation of costs, the taxing officer disallowed the solicitor's bill because, at the time the costs and disbursements were incurred, he had not been entitled to practise in the High Court by reason of the absence of his name from the register. All of the judges of the High Court held that the solicitor was entitled to recover filing fees and counsel's fees. The majority (Gibbs ACJ, Jacobs and Aickin JJ, Mason and Murphy JJ contra) held that he was also entitled to recover his professional costs. In this respect the majority applied the principle in Chorley. I do not regard anything in Guss or Chorley as laying down a principle contrary to that which I have stated concerning the entitlement of a litigant in person to recover costs reasonably or properly incurred. The actual holding in Guss relates to the rather peculiar circumstances which had there arisen. At stake was the effect upon the solicitor's entitlement to professional costs of the provisions of the Judiciary Act 1903 (Cth), sS5B and the High Court Rules. Furthermore, the circumstances in which the solicitor had, by administrative error of an officer of the Court itself, been omitted from the register make it unsafe, in my view, to derive from the case any principle wider than that necessary to deal with the unusual circumstances that were then before the High Court. In particular, I do not believe that the decision presents any endorsement in Australia of any earlier suggested common law principle that a litigant in person, who is not legally qualified, is disentitled from recovering costs which can be classified as legal professional work. It is one thing to deny a lay litigant in person an allowance for the time expended in the preparation of a case. See Buckland v Watts [1970] 1 QB 27. That question is not before us because of the limited grant of leave which the appellant has to appeal from the decision of Grove J. But it is another thing entirely to deprive the litigant in person of the recovery of the sums which have necessarily been incurred, dipping into his pocket, in order to vindicate his legal rights in the court. None of the items which I have listed above fall within legal professional work strictly so called. They are simply mechanical but necessary functions which were essential if the appellant was to invoke the consideration of the court of his legal rights. URJ CACHIA v ISAACS AND ORS (Kirby P) 11 If anything said by Sir Gordon Wilmer in Buckland v Watts or any of the other English authorities cited, was thought to derogate from the principle which I have suggested as applicable to this case, I would not follow it. In particular, I do not agree that there is to be derived from any of the English or Irish authorities cited to the court a limitation such as the respondents urged, that litigants in person cannot recover expenses of the kind listed, simply because, had only the litigant been represented, such expenses would be part of the costs of a legal representative and for that reason are excluded from recovery. Whether or not that principle is established by legal authority in England, I do not consider it to be a principle of the common law of this State. A study of the English and Irish decisions shows how unsatisfactory they are. First there is the double standard applied to unrepresented solicitors who can recover their costs. Then there are the unprincipled distinctions between typing (which can be recovered) and costs for attending court (which cannot). Then there are the repeated expressions of regret at the manifest unfairness of the result produced - which requires apology from the judges giving effect to them. Such offensive consequences are not required of this Court. We do well to apply a simple and just formula. We can do so precisely because the warrant to do so is provided by our Rules. The governing Rule of Court To the extent that any limiting principle is suggested by earlier English or Australian authority, as least in this Court it is clearly overridden by the requirement of Pt52 R23(2) of the Supreme Court Rules. That sub-rule provides:- "23(2) On a taxation on a party and party basis there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed." It is to be observed that the sub-rule is, as would be expected, silent concerning the position of parties unrepresented and appearing in person. The sub-rule is neutral in this respect. The sub-rule has the authority of legislation. To the extent that any earlier common law authority or decision of courts are inconsistent with it, such authority is displaced by the simple requirement which Pt52 R23(2) provides. It is that principle which must be observed by the taxing officer, including in a claim for the recovery of costs by a litigant in person. Nothing in s19 of the Act requires a different conclusion. There is no room in the sub-rule for the disallowance for costs which are "necessary" or "proper" for the attainment of justice or enforcement or defence of rights which places a litigant in person in a disadvantageous position as against the position of the represented litigant. There is, in particular, no room in the rule for the exclusion of a category of costs because they would ordinarily be costs incurred by a legal practitioner. Street J referred to the sub-rule in Kerridge (op cit, ibid at 4). His decision in that case must be seen in the context of the sub-rule. Far from being a "one off" exceptional provision for the attendance of a litigant in person at court, as assumed below and urged by the respondents, Kerridge represents a reminder of the basic principle which Pt52 R23(2) of the Rules of this Court secures. It is my view that the exercise of the review by Grove J miscarried. The decision of the taxing officer from which that review came likewise miscarried. In neither case was the principle established by the Rule of Court observed and applied. I am presently inclined to think that most of the "out of pocket expenses" referred to above, if not all of them, were costs necessarily or properly incurred by the appellant within the terms of the sub-rule. I draw attention to the disjunctive terms in which the governing adjectives are stated. But whether or not 12 UNREPORTED JUDGMENTS this is so, is a matter which should be passed upon by the taxing officer. It is inappropriate in this appeal from Grove J's review that this Court should assume the functions of taxing the bill, however desirable it might be to bring this long drawn out litigation to finality. Although this decision is confined to "out of pocket expenses" by the terms of the leave to appeal, it is possible that other costs actually incurred by the appellant fall within the instruction of the sub-rule, unencumbered by any suggested common law disqualification. However, that determination must be left to the taxing officer, guided by this decision of the Court. The principle established by my decision is grounded not only in the terms of the Rule of Court but also in the practical protection of the fundamental right of any litigant to assert rights or defend interests in court without a cost penalty for doing so based on no reason better than that he or she is not legally represented. Only this approach will rescue the Court from the double standards which I respectfully believe have marked previous judgments in this country and elsewhere on this topic. The time has come to terminate such departures from proper principle. The Rules of Court provide the basis for doing so in this State. No authority binding on the Court prevents it. The notion that a litigant in person cannot recover the wages reasonably lost by representing himself (successfully) in the Court of Appeal is so offensive to principle and inconsistent with the Rules of Court, that it should not, I believe, be sanctioned by us. To do so undermines our proud assertions of open courts and access by all to justice. Samuels JA The appellant appeared in person against the respondents on a stated case from a magistrate and succeeded before Wood J who made an order for costs in his favour. The respondents appealed to the Court of Appeal against this decision. Once again the appellant (there the respondent) appeared in person, succeeded and got an order for costs. In due course the appellant brought in two bills of costs and they were taxed in the absence of the parties, as the rules provide (Pt52 R50B(1)(b)), and certain items disallowed. The appellant then filed a request for an appointment for hearing and a hearing took place, attended by the appellant in person and one of the respondents. After argument the taxing officer allowed a further small sum but declined to accede to the appellant's argument that all the items disallowed should be restored. At the conclusion of the hearing the appellant indicated his intention to proceed further and the matter was reconsidered by the taxing officer, again attended by the appellant and one of the respondents. The appellant maintained his contention that the items disallowed should be restored and the respondents maintained their objections. The taxing officer refused to vary the two bills any further and, in response to a request from the appellant, stated his reasons. From these it appears that the dispute between the parties fell into two sectors. First of all, the appellant claimed that he was entitled to be compensated for his loss of earnings incurred as a result of spending a large amount of time in preparing and prosecuting his appeals tin which I include the stated case before Wood J). Secondly, he claimed to be reimbursed in respect of certain items claimed to be out of pocket expenses. The taxing officer applied what he regarded as the principle that a litigant appearing in person is not entitled to recover any allowance for time lost or trouble or personal expense incurred in preparing and conducting his own case; but may only be reimbursed for certain items of out of pocket expenses. However, despite the existence of this principle which, as I will indicate in a URJ CACHIA v ISAACS AND ORS (Samuels JA) 13 moment, is well established, the taxing officer did allow the appellant two days' loss of income for each set of proceedings. He did that on the basis of allowing one day for attending each hearing and one day for undertaking preparatory work, "not in the nature of legal or professional work that Mr Cachia could possibly have been required to do in any case had he retained legal counsel." How the taxing officer arrived at this conclusion on the facts is not at all clear to me. The items in question describe what appears to be preparation wholly in the nature of legal or professional work. For example, item 84 in the bill relating to the stated case is in these terms: "Prepare for hearing... Peruse all transcripts, exhibits, stated case, over 1577 folios, make 66 pages of submissions. Days off work to prepare...... " The claim is for 4 days plus 411 hours at a total of $3012.78. However, the taxing officer perceived some support for his approach in the unreported decision of Street J, sitting as a judge of the Equity Division, in Kerridge and anor v Foley and anor (19 August 1970). Furthermore, although the appellant's claim was that the costs (his word) claimed were for the use of his time on work associated with the appeals "which would otherwise have been used in the production of income in my field of profession", he did not furnish the taxing officer with any evidence save for calculations set out in the appellant's affidavit establishing his salary as an employee of The Metropolitan Water Sewerage and Drainage Board and the rate at which he charged as a consulting engineer, an occupation he pursued for two hours per day after his ordinary employment had ceased. He did not however, it would seem, show any specific claims for loss of income. He merely asked the taxing officer to assume that during the hours spent on preparing the appeals he would have earned at an hourly rate of $59.19, which was his consultancy fee. However, the allowances made were based on the appellant's daily rate of pay. In order to appreciate the nature of the case and the principle which it raises, it will be helpful to consider the appellant's bills of costs in a little more detail. I can confine myself, I think, to that concerning the order for costs made in the Court of Appeal. Item 1 claims $1,420.56, that is "in excess of twenty four hours at Association of Consulting Engineers Australia scale of fees of $59.19 per hour" and describes the work done as "Draft notice of appeal after perusing transcripts, exhibits, stated case...... "Item 105 is "Prepare for hearing in Court of Appeal, perusal of transcript, exhibits, submissions and all other documents; study law texts and precedents as it (sic) relates to the case, over 35 hours at ACEA scale of fees at $59.19 per hour", a charge of $2071.65. I mention these items merely to provide some background, because they were both disallowed, amongst many others, as claims for legal professional costs; and the Court of Appeal, (Kirby P, Mahoney and McHugh JJA) did not grant leave in respect of that class of claim. There is a number of items claiming to recover disbursements in the sense of moneys paid out to other persons, and these are in question on this appeal. Other claims advanced are for compensation for attending the Registry to settle appeal papers, for attending call-over and, of course, for attending court. For reasons I will mention in a moment I do not think that they are properly the subject of the appeal. The appellant, being dissatisfied with the taxing officer's reconsideration, moved Grove J to review his determination, but the learned judge declined to do so and dismissed each of the notices of motion. Then there was an application for leave to appeal, that being necessary because this was an appeal "as to costs only which are in the discretion of the Court": s101(2)(c) of the Supreme Court Act 1970 ("the Act"). Kirby P, Mahoney and McHugh JJA granted leave to appeal 14 UNREPORTED JUDGMENTS limited to the items relating to claims for out of pocket expenses where the taxing officer's disallowance had been affirmed by Grove J. The categories of the items which were raised on appeal have been set out by the President in a judgment which I have had the benefit of reading in draft, and for ease of reference I adopt his classification. Out of pocket expenses disallowed The out of pocket expenses disallowed by the taxing officer fall, relevantly, into five categories. They may be described as follows:- Category 1: Typing etc costs Under this category a number of items were disallowed eg: Item 3 (CA) 15.9.84 typing fee; letter 6.00 Item 5 (CA) 25.9.84 typing fee; notice of appeal, three folios 9.00 Item 5 (CA) 25.9.84 2x10 copies of notice of appeal at.20 each 4.00 There were many such items disallowed. Category 2: Travelling and like expenses Examples in this category are:- Item 9 (CA) 25.9.84 Fee paid to process server to serve notice of appeal on respondent 20.00 Item 31(CA) 15.10.84 travelling expenses of the appellant to attend court 6.50 Item 91(CA) 11.6.85 conduct money paid to Consumer Claims Tribunal with subpoena to produce file 2.00 Item 51(CA) 2.11.84 costs of certified mailing of letter to respondents 1.23 There were several items in this category. Category 3: Purchase of Judgment and Rules Item 24 (SC) Purchase of "Supreme Court Rules" paid 38.50 plus Supreme Court Act 1.84 Category 4: Security for costs charges The taxing officer allowed part of item 44, being a bank fee for the supply of a security. Such security had been ordered by the Court for the costs of the appeal which the appellant first made to the Court of Appeal. However, the taxing officer disallowed items claimed by the appellant under that head for attending the bank to collect the security and travelling expenses incurred in doing so. A number of other items connected with the security were likewise disallowed. They included:- Item 83 (CA) 3.5.84 Bank guarantee fee (5.00 per month) Item 140(CA) 24.3.86 Peruse letter from bank dated 14.3.86 re guarantee charges Guarantee cancellation fee URJ CACHIA v ISAACS AND ORS (Samuels JA) 15 Item 142 (CA) 24.3.86 Loss of income on $4,000 deposited with bank as security for guarantee 44% per annum of period 1.11.84 to 1.5.86 Category 5: Attendances at court Item 30 (CA) 15.10.84 hearing of "leave to appeal" 1 day off work attend registry to settle appeal papers and search at Supreme Court Section and Court of Petty Sessions... for missing court file - 1 day off work Attend registry to settle appeal papers, 1 day off work to prepare and attend Attend callover, half day off work Hearing in Court of Appeal 1 day off work Plus travelling expenses Attend court to receive judgment and peruse judgment, 50 pages, half day off work plus travelling expenses 142.80 Item 52 (CA) 8.11.84 142.80 Item 61 (CA) 6.12.84 142.80 Item 86 (CA) 5.6.85 71.40 Item 106 (CA) 5.8.85 142.80 6.50 Item 109 (CA) 9.10.85 71.40 6.50 The appellant regarded all these items as constituting claims for out of pocket expenses. So it is necessary in the first instance to see what is meant by that phrase. Art 16 RS of the Supreme Court rules provides: "Where a party pleading claims damages which include moneys which he has paid or is liable to pay, he shall give particulars of those moneys"; and this rule is headed "Out of pocket expenses". I realise that by the analogical force of s11A(2) of the Interpretation Act 1897 this heading, which is really a transposed marginal note, is not to be regarded if one were construing the meaning of RS. But the meaning is perfectly plain, and I regard the heading as serving the very much more limited purpose of indicating that a statutory drafter regarded out of pocket expenses as a correct description of the moneys specified in the rule. In any case the Macquarie Dictionary defines "out of pocket" as "of or pertaining to what has been paid out in cash or outlay incurred" and instances "out of pocket expenses". It seems to me, therefore, that amongst the categories in dispute Items 140, 30, 52, 61, 86, 106 and 109 (excepting claims for travelling expenses) do not constitute out of pocket expenses. Accordingly, having regard to the terms of the 16 UNREPORTED JUDGMENTS grant of leave, no question arises in respect of them. Nevertheless, it is difficult to consider the principles which apply to the recovery of out of pocket expenses without at the same time examining the status of claims such as these. But I preface my discussion of them by saying that, for the reason I have mentioned, they appear to me to be beyond the ambit of the leave granted. There is a well established line of authority in England and Australia which establishes the proposition that a litigant in person, who is not a solicitor, is not entitled to claim costs in respect of the time expended in preparing and presenting his or her case, but may recover only out-of-pocket expenses. The genesis of the tule (because it has been regarded as a rule of practice to which the discretion of a taxing officer must defer) may be found in the Statute of Gloucester 1278 (6 Edw 1 c 1) which first introduced the notion of costs into the law of England. There is a passage in 2 Co Inst (1787 ed) at 288, which, dealing with the statute, observes that it means that the "demandant" (the statute dealt with certain real actions) may have all the legal costs of the suit but not "the costs and expenses of his travel and loss of time." The views of Lord Coke have been highly regarded by some members of this Court: see Jago v District Court of New South Wales and ors (1988) 12 NSWLR 558 at 585 per McHugh JA (as he then was). That statement has been consistently reaffirmed since at least 1852; see Howes v Barber (1852) 18 QB 588; 118 ER 222, espec at 592 (224) per Lord Campbell LJ and Dowdell v The Australian Royal Mail Steam Navigation Company (1854) 3 El and B 902; 118 ER 1379. In The London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 it was held that a solicitor who successfully defends an action in person is entitled upon taxation to the same costs as if he had employed a solicitor, except in respect of items which the fact of his acting directly renders unnecessary. That is not the point precisely in question here; but there are dicta in Chorley, necessary to the decision, which explain the formulation of the rule in suit. Brett MR at 875 said: "T should have thought that a person wrongfully brought into litigation ought to be indemnified against the expenses to which he is unjustly put; but there cannot be a perfect indemnity, because it is impossible to determine how much of the cost is incurred through his own over-anxiety. When an ordinary party to a suit appears for himself, he is not indemnified for loss of time; but when he appears by a solicitor, he is entitled to recover for the time expended by the solicitor for the conduct of the suit. When an ordinary litigant appears in person, he is paid only the costs out of pocket. He cannot himself take every step, and very often employs a solicitor to assist him: the remuneration to the solicitor is money paid out of pocket. He has to pay the fees of the court, that is money paid out of pocket; but for loss of time the law will not indemnify him." Bowen LJ at 876-7 observed: "Professional skill and labour are recognised and can be measured by law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual. Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs; and it would be absurd to permit a solicitor to charge for the same work when it is done by another solicitor, and not to permit him to charge for it when it is done by his own clerk." In Anthony v Walshe (1888) 22 LR (I) 619 the Irish Court of Appeal determined that the travelling expenses of a party, incurred for the purpose of going up to Dublin from the country to oppose an interlocutory motion, are not taxable items in party and party costs. At 625, Fitzgibbon LJ said: "Every suitor URJ CACHIA v ISAACS AND ORS (Samuels JA) 17 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 such assistance fixed costs are allowed. If, through confidence in his own powers, mistrust of lawyers, 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." Whether a party appearing in person had a right to expenses for attending to give evidence was expressly excluded from the Court's decision. The principle has been affirmed in more recent times. In Buckland v Watts (1970) 1 QB 27, the Court of Appeal held that litigants in person other than solicitors were not entitled to claim costs in respect of time expended in preparing their cases, but only their out of pocket expenses. Donaldson J (as the present Master of the Rolls then was) at 29 posed the point of principle upon which he gave leave to appeal as being "whether a litigant in person, not being a solicitor, can in any circumstances recover costs which are based upon or reflect loss of earnings resulting from time spent in acting on his own behalf in the litigation;" a proposition which he felt constrained by authority to answer negatively, although evidently sympathetic to the other side of the argument: see at 31. However the Court of Appeal had no doubt about the matter, founding upon Coke and Chorley. Sir Gordon Willmer at 37-38 in a passage strongly criticised by the present appellant but which to my mind puts the issue very clearly, said:- "The other aspect of the appellant's appeal raises undoubtedly a most interesting question, namely, that whereby he seeks to recover in respect of his own expenditure of time and labour in preparing his case. What a successful party who has got an order for costs is entitled to recover falls, as is well known, under two headings. One heading covers his disbursements; that is to say, money which he has actually had to pay out to other people, such as witnesses, counsel, professional advisers and so forth. The other heading is described as 'costs'. This is intended to cover remuneration for the exercise of professional legal skill. This, I think, is in accordance with the views expressed by Bowen LJ in the judgment which my Lord has already read. It is because there has been an exercise of professional legal skill that a solicitor conducting his own case successfully is treated differently from any other successful litigant in person conducting his own case. We are not concerned with the exercise of other professional skills. Other professional people, who become involved in litigation and conduct their own cases, may recover something in respect of their own professional skill in so far as they qualify as witnesses and are called as such. Nobody else, however, except a solicitor, has ever been held entitled to make any charge, as I understand it, in respect of the exercise of professional legal skill and it is this which the appellant has sought to do in the present case. I have much sympathy for him, as indeed had Donaldson J, but I can find no ground, either in principle or on authority, for allowing him anything by way of remuneration for the exercise of a professional skill which he has not got. In those circumstances, I agree that the appeals must be dismissed." In Heywood v Wellers (1976) 1 AER 300 Lord Denning MR, in a judgment commencing with the provocative sentence "It all started in a public house," felt constrained at 307 to apply Buckland to deny a litigant in person compensation for her own costs and effort in conducting the proceedings although she had "suffered much in toil and tears"; but his Lordship looked forward to the Litigants in Person (Costs and Expenses) Act 1975 which was passed on | August 1975 but 18 UNREPORTED JUDGMENTS had then still to come into operation. It is in operation now. Finally, I refer to two recent English cases. The first Regina v Boswell (1987) 1 WLR 705 which extended the rule expounded in Chorley to the appearance by a barrister in his own interest on a taxation of costs; and the second is Regina v Stafford, Stone and Eccleshall Justices (1988) 1 WLR 369 in which the applicant, a solicitor who was charged with certain criminal offences but discharged by the examining justices and awarded costs out of central funds pursuant to the Costs in Criminal Cases Act 1973, was held entitled to recover charges for his own time, and time spent by his articled clerk, charged at the firm's standard rate. Hart v Aga Khan Foundation (UK) (1984) 1 WLR 994, to which I will return, is a case dealing with the Litigants in Person (Costs and Expenses) Act 1975 (UK) and RSC 0.62 R28A which, at that time, regulated the amount of costs and expenses that might be allowed to a litigant in person; the relevant provision now is 0.62 R18. That represents a summary of the English precedents. They are of persuasive authority because the language and structure of the English and Australian (certain of New South Wales and Victoria) cost rules, so far as they dealt with orders made in the case of legally represented persons, have been markedly similar. Further, Chorley was applied by the High Court in Guss v Veenhuizen (1976) 136 CLR 47, where the High Court formulated the reason for the rule of practice that a solicitor who is a party and appears in person is entitled to professional costs. At 51 Gibbs ACJ (as he then was), Jacobs and Aickin JJ, having referred to "the well established rule of practice which entitles a person, being a solicitor, to certain professional costs in those circumstances", and having cited Chorley and H Tolputt and Co Ltd v Mole [19111 1 KB 87 (in the Divisional Court), [1911] 1 KB 836 (in the Court of Appeal), added: "Those authorities establish that the litigant in person does not recover such costs in such circumstances in the capacity of a solicitor, but because, he happening to be a solicitor, his costs are able to be quantified by the Court and its officers." The case went to the High Court because the appellant, a Victorian solicitor who thought he was on the register of solicitors of the High Court, having won an appeal in which he acted for himself, claimed professional costs and disbursements which were disallowed on taxation because, in consequence of an error by an officer of the Court, the appellant's name had not in fact been entered. At 52 their Honours said: The work was done by him in person and the only question is whether in the special circumstances here existing he was entitled to the benefit of the rule of practice established by the authorities to which we have referred. The answer depends on the true basis of the rule. Since its basis is not one of privilege to a solicitor (in which case it might be argued that the precise qualification must be satisfied) but is that work done by a solicitor can be quantified on a taxation of costs, there is no reason why work done by the appellant whose lack of the precise qualification was the result of an error of an officer of the Court, should not have the benefit of the rule of practice. 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." These observations, which are binding upon us and clearly establish that a litigant in person is not entitled to recover any allowance for professional work done, and which were followed by Hodgson J in Wentworth v Rogers (30 March URJ CACHIA v ISAACS AND ORS (Samuels JA) 19 1987, unreported), the only other Australian case, it seems, which deals directly with the case of a litigant in person, formed the ground for the limitation originally imposed upon the grant of leave to appeal, and affirmed when the appeal was opened. Accordingly, as I have already said, item 140 and all the items in Category 5 above were rightly disallowed. They are claimed for attendances at the registry and in court which plainly constitute legal professional business. Further they are not out of pocket expenses (for the reasons already indicated) save for the claims in items 106 and 109; but these must be disallowed because they were incurred for a purpose for which no reimbursement to the appellant is permitted. However, in my view the other claims for out of pocket expenses in Category 1 and Category 4, and items 9 and 51 and Category 2 (but not item 31 which must follow the fate of the travelling component of items 106 and 109) are out of pocket expenses which the appellant is entitled to recover. That is made clear by both ChorleY and Buckland, and to this extent the taxing officer's discretion miscarried. He evidently applied a wrong principle by rejecting these items on the ground that moneys paid "to legally unqualified agents for the carrying out of professional or legal work such as typing.... and filing or serving documents" were not proper out of pocket expenses. Recovery of moneys paid by a lay litigant in person to solicitors, counsel and "professional advisers" is authorised by Chorley at 875 and by Buckland at 37-8, in passages which I have quoted above. No case places restrictions upon the character of out of pocket expenses in respect of which a litigant in person may recover; save that I think that if she is not entitled to be remunerated for appearing in court, she ought not to be paid for getting there. I see no reason therefore why unqualified persons cannot be paid to type if qualified persons can be paid to advise. I think that the error arises out of the concept that an unqualified litigant in person cannot recover for anything spent "for the carrying out of legal or professional work". That is not the test. Moneys spent ie moneys out of pocket, for such a purpose are recoverable. Compensation for time lost by the litigant in doing the work himself is not. That really disposes of the appeal and I would send the matter back to the taxing officer to reconsider in the light of this judgment, since the taxing officer must retain the discretion to decide whether items, recoverable in principle, ought nevertheless to be allowed. But, as I have already indicated, discussion on the appeal ranged rather more widely than we should perhaps have allowed. Arguments were put for and against the recovery of those items, which stood outside the leave granted; and, for that purpose, submissions were developed from the practice assumed to be followed in the case of represented litigants, and from the supposed supremacy of Pt51 R23(2) which is in these terms:- "On a taxation on a party and party basis there should be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed". I add that "costs" are defined in s19 of the Supreme Court Act to include "fees, charges, disbursements, expenses and remuneration." After we had reserved judgment we sought advice from the Principal Registrar as to the practice of the taxing officers in determining claims by legally represented litigants in respect of time spent in court. We duly obtained that advice and sought and received the parties' comments upon it. We do not, of course, regard this practice as binding upon us. But it is most relevant in a field such as this to know what the practice is. In all the circumstances and bearing in mind the 20 UNREPORTED JUDGMENTS general importance of the questions involved I propose to express my views upon the further arguments advanced. I can justify them, in any case, by recognising the possibility that I am wrong in regarding the items I have mentioned as falling outside the leave granted. Atule in terms almost identical with those of R23(2) has been in force in New South Wales since | January 1916 at least, RSC (Costs) R50, replaced in 1952 by Costs Rule 23, which made a slight alteration to the wording, and for which R23(2) was in turn a substitute. R23(2) was based upon the then current English 0.62 R28(2), first promulgated as 0.65 R27(29) in 1902 and which remained in force until at least 1985. The phrase "necessary or proper for the attainment of justice" appeared as early as 1845 in RCXX of the General Orders and Rules of the High Court of Chancery: see [1845] 14 LJ (NS) Eq 296. But despite the lengthy currency of a rule in the same terms in England and Australia (for it was to be found in States other than New South Wales) it seems never to have been invoked to overcome the effect of the line of cases to which I have referred. In particular, the same formula appeared in the High Court Rules as O.71 R74 when Guss was decided. Nonetheless the majority was able to express the view that had he not been a solicitor the appellant would have been treated as an ordinary layman, ie the Court would not have attempted to make an assessment of professional costs: ibid. It is clear in my opinion that R23(2) has never been regarded as authorising an allowance for costs in the sense of remuneration for the exercise of a professional skill which, of course, the appellant does not possess. It was submitted in the alternative however that the rule supported the appellant's claim simply on the ground that it was necessary for him to prepare and present his case or allow the proceeding to go by default and thus abandon the defence of his rights. But in preparation and presentation a litigant in person is doing precisely what the lawyer would be doing if the party were represented. There is no middle ground. The litigant cannot be present in court to supervise her own conduct or instruct herself. In any event, a legally represented party is not entitled to an allowance for being in court to supervise the conduct of the case: Russo v Russo (1953) VLR 57 at 67 and Chanter v Blackwood (1904) 1 CLR 456 at 458-9. It is and always has been the practice of the taxing officers to disallow any such claim: Saddington Taxation of Costs (1919) at 48. But such a party is entitled to witness's expenses: Russo ibid, and the cases cited. There are three cases, however, which find in R23(2) or its equivalent support for a somewhat equivocal allowance to legally represented parties. The first is Australian Blue Metal Ltd v Hughes and ors (1970) 2 NSWR 119. There, three of the four defendants in the suit included in their bill items comprising costs and disbursements relating to their presence in court during the plaintiffs case. That item was disallowed but, on review, Helsham J (as he then was) restored it. He did so on the ground that the three defendants "were not mere witnesses" but parties to the suit, and in the circumstances of that case, which was of great complication apparently, it could reasonably be contemplated "that each of them might be required to play an integral part in the day to day conduct of the defence, and I do not think that any prudent legal adviser would contemplate proceeding at the hearing without their presence. To this extent their presence was, in my view, most necessary and proper for the maintaining or defending of their own rights." Further, without seeking to lay down any general rule, his Honour expressed surprise if a "real defendant" (other than an underwriter, I URJ CACHIA v ISAACS AND ORS (Samuels JA) 21 presume) brought into court at the suit of a plaintiff was not "if he wins ordinarily entitled upon taxation to reasonable expenses incurred by his attendance throughout the whole duration of the hearing... " In fact, as I have indicated, that was not then and is not now the practice, and his Honour was not referred to any of the cases on the subject. However, he decided that in the case before him the three defendants "were so integrally involved with the issues that had emerged from the pleadings that they were entitled to be at court at all times whether or not they should be required as witnesses." The case was applied by Street J in Kerridge, which I have already briefly mentioned, in a judgment which apparently had the approbation of the other judges of the Equity Division. In that case the successful male defendant, Mr Foley, had, at the request of his counsel or solicitors, carried out an enormous amount of investigation in the collection of evidence, searched a great many records, had prepared extracts and analyses of many of the documents and had available accordingly a wealth of information referable to the due conduct of the defence. For all of this Mr Foley, in his bill of costs, sought to obtain an allowance for the expenditure of time and money incurred, and also for attending at the hearing and at a conference prior to it. These items the taxing officer disallowed. But Street J expressed the view that the practice of disallowing items such as this was unsound and ought not to be further recognised, considering that it was contrary to the large discretion conferred by the then R23. However, the learned judge did not think it right to grant Mr Foley remuneration for the use of his time, and refused him anything for work done in his own time, determining only to award an indemnity against any loss of wages or salary related to the time spent in preparing material or attending the hearing. Recently, in Petrunic and anor v Barnes (Supreme Court of Victoria, 15 December 1988) Murphy J applied Helsham J's decision in Hughes and restored a claim made on taxation by the successful defendant, a gynaecologist sued for professional negligence, for the costs of attending court for three and a half days, which was the whole duration of the hearing, at which he gave evidence. Murphy J was of the opinion that in such a case the taxing officer should consider "with an open mind" whether the attendance of the party was necessary or proper within the terms of the Victorian rule which contains the same provision as R23(2). It appears that the current practice in New South Wales does not give effect to the views of Helsham J and Street J. For my own part I think that these decisions were correct in their result but did not sufficiently formulate their grounds. It must be recognised that in certain cases, of which Hughes was evidently one and Petrunic another, prudence entails the presence of the client in court as an insurance against shifts and new assignments in the adversary's evidence. In such events immediate instructions from the client may be imperative; and the client is really performing the role of witness, whether called or not. There are other cases in which any such evidentiary flux is improbable. In such cases as Kerridge R23(2) authorises some allowance to the client during the time that actual exigency or prudent contemplation required his or her presence in court. That attendance should be regarded as that of a potential witness and not "merely to observe or to instruct": see Russo at 67. I interpolate that Helsham J's remarks that the defendants were not mere witnesses but parties misplaced the procedural emphasis. The attendance should be paid at the rates laid down for witnesses in Table 3 of Sch G. It must be remembered that R23(2) has as its object the attainment of justice or the enforcing or defending of parties' rights. The mere 22 UNREPORTED JUDGMENTS presence in court of a legally represented party does not conduce to either end; and, clearly, in each of the three Australian cases I have mentioned the allowance was firmly linked to the necessity of the parties' presence in court. By way of further example, the attendance in court of a party to an appeal would not usually be necessary to the adequate conduct of the proceedings. Hence taxing officers should pay more flexible regard to the terms of R23(2) and must be prepared to allow claims (at witness's rates) where, in cases such as Hughes, or Petrunic, the presence of a party in court (other than during time actually spent in the witness box) satisfies the prescription in the rule. I consider also that the practice should be enlarged further. The one occasion upon which the presence of the client is indispensable is when he or she first gives the solicitor instructions for the claim or defence. Attendance at such a conference (and at a conference with counsel if the taxing officer thinks it necessary or proper) should also be allowed at witness's rates. In addition, it may be that, in circumstances such as those which evidently obtained in Kerridge, a party is for some reason better able than his solicitors, or agents available to them, to conduct investigations or collect evidence. If so, I see no reason why an allowance should not be made in respect of time spent in these activities. But it should not be calculated on the basis of time spent, or with regard to any distinction between the party's expenditure of paid time or unpaid leisure time. To the extent that the exercise is designed to gather evidence it should be compensated as if it were for the purpose of qualifying a witness to give skilled evidence: see Table 3, item 53. I would have thought that such cases would be rare. I conclude therefore that R23(2) does not authorise any allowance to a legally represented party for attendance in court other than as a witness or in the particular circumstances I have postulated. Hence no analogy exists by which such an allowance, if paid to a represented party, should be paid to a party in person. There is no case of which I am aware that distinctly approves the right of such a party to witness's expenses, and Chanter at 459, and AnthonY are against it. But the practice is to grant the allowance. The position therefore remains that, as Guss establishes, a litigant in person is not entitled to any allowance for preparation or attendance in court, save as a witness. It would, I think, be within the taxing officer's discretion to allow a claim such as that successfully made in Kerridge, if the circumstances justified it. As it turns out the taxing officer here has, in allowing the appellant two days loss of income for each proceeding, been over generous. These were amounts to which the appellant was not entitled. The basis for the exclusionary rule, as Bowen LJ pointed out in Chorley, is the difficulty of assessing the value of legal services performed by a lay person. The costs rules lay down precise amounts or ranges of amounts to be charged by solicitors and counsel for particular and specifically identified items of work. These can have no application to the appellant. He argued, however, that since the Court, as it must do, has permitted him to appear in person, it was a matter of necessity for him to equip himself for the battle and appear on the field; and he should be paid for the time he has spent in doing so. I think that there is much to be said in favour of that argument. Certainly the courts must remain open to litigants in person, whether they adopt that character from choice, or have it thrust upon them for want of money, or persist in it from obstinate or obsessive refusal to recognise lack of merits. The reason does not matter. But it is important not to confuse access and indemnity. URJ CACHIA v ISAACS AND ORS (Samuels JA) 23 As our law and practice stand the question is how are litigants in person to be indemnified against the expense of performing what is essentially legal work? If the bill presented by the appellant is examined it will be seen that there are items for which he has claimed a day's, or half a day's pay, which the scale of costs in Schedule G would have costed more cheaply. Take the example of Items | and 105 in the bill for the hearing in this Court. To claim twenty four hours for drafting the notice of appeal, and for reading the documents, seems to me exorbitant. I accept that the appellant spent that time. But it was far more than a professional would reasonably have expended. Similarly, looking at Item 105, I consider that a competent lawyer could have got this case up in a good deal less than thirty five hours. The appellant claims the cost of purchasing the Supreme Court Act and Rules. I would not allow that out of pocket expense. I do not consider that a litigant in person is entitled to impose upon his opponent the cost of acquiring a legal library; a charge which no lawyer could seek to impose upon his client. It is one thing to seek to protect a litigant in person by providing some financial indemnity for time spent in prosecuting the case; but it is quite another to submit the adversary to greater expense than would have been incurred had the successful party been represented. The absence of legal representation has nothing to do with the adversary. I think it possible to go as far as I have suggested with respect to expenses which might be regarded as witness's expenses. But I can see no basis upon which the present cost rules can accommodate charges for preparation or advocacy. This is the problem which the English statute has endeavoured to solve and that Act, read with 0.62 R18, provides that a litigant in person shall be awarded for any item a sum not exceeding, except in the case of a disbursement, two-thirds of the sum which would have been allowed if the litigant had been represented by a solicitor, provided that the litigant has suffered pecuniary loss in doing that item of work. Otherwise the litigant is allowed not more than an hourly sum specified in the rule. Even though this would seem to provide fairly straightforward guidelines, difficulties can ensue, as Hart establishes. There, for example, the plaintiff claimed 214 hours in preparation for the trial which the taxing officer thought outrageous, and for which he substituted 86 hours (an assessment which was, incidentally, upheld) made up of 43 hours of working time at a larger hourly rate and 43 hours of leisure time at a lesser rate. That is to say he did not find that over the whole of the time spent the plaintiff had lost income. It seems to me that similar provisions must be considered here. The problem is not appropriate for judicial remedy. For example, it would be most useful (and, indeed, necessary if legislation were in contemplation) to know why litigants do appear in person. Is it by choice, or by reason of failure to satisfy the financial requirements of legal aid but of the want of the necessary money nonetheless; or refusal of legal aid because of want of merits coupled with impecuniosity or faith in the party's own legal powers? Or for other reasons? In the event I regard the items claimed in categories 1, 2 (save Item 31) and 4 (save for the first charge in item 140) as falling within the taxing officer's discretion. I consider that those in category 3 and 5 are outside it. (In any case category 5 stands outside the leave to appeal and must be rejected on that account). As I have said I consider that the taxing officer was over generous in allowing the claim he admitted for preparation and attendance at court. But there is no ground for reopening those items. 24 UNREPORTED JUDGMENTS I would therefore allow the appeal, set aside Grove J's orders save the order dealing with reserved costs, and remit the matter to the taxing officer to do therein as shall be just and in accordance with the judgment of this Court. The appellant ought to have succeeded in part before Grove J, and should have half of his out of pocket expenses of that proceeding. In the only matter covered by the leave granted the appellant has succeeded before us, and the respondents must pay his out of pocket expenses of the appeal. ORDERS 1. Appeal allowed; 2. Orders of Grove J dated 10 April 1987, set aside; 3. In lieu thereof, remit the matter to the taxing officer to do therein as shall be just and in accordance with the judgment of the Court; 4. The respondents to pay half of the out of pocket expenses before Grove J and the set out pocket expenses of the appeal.