ISAACS v CACHIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 4 September 1989 [1989] NSWCA 105 COSTS — Suitors' Fund Act 1951 — application for certificate — other litigant opposes grant — whether has standing to do so — argues that certificate should be denied for "irresponsible" arguments — held: (Assuming opponent has an interest entitling him to be heard in opposition to the grant of the certificate) The argument was not irresponsible and the premises to the application of the Act being made out the claimants were entitled to the certificate they sought. Suitors' Fund Act 1951, s6. Supreme Court Act 1970, s46. 1. To the orders of the Court of 23 March 1989 be added an order, namely that the claimants have a certificate under the Suitors' Fund Act 1951 in respect of the costs of the Opponent's appeal to this Court. 2. No order as to the costs of the application for the certificate. Kirby P On 23 March 1989 the Court constituted by Samuels JA, Clarke JA and myself allowed an appeal by the opponent, Mr Cachia, from an order which Grove J had made on 10 April 1987. By that order, Grove J had dismissed the opponent's application for a review of a taxing officer's assessment of the costs payable by the claimants to the opponent in respect of proceedings both in the Common Law Division of the Supreme Court and the Court of Appeal. The proceedings before Grove J, and the appeal from his order to this Court, raised a number of questions of law, namely, whether, in a taxation of costs on a party and party basis, a successful litigant in person is entitled to any allowance for: (a) The time spent in preparing the case and attending court to organise the case and otherwise in connection with the proceedings; (b) Money paid for performing services such as typing, photocopying and services ordinarily performed by a solicitor; (c) Travelling and other expenses, including postage, incurred by the litigant and by third parties performing services in connection with the proceedings; (d) The purchase of copies of relevant legislation; (e) Expenditure incurred and interest foregone in connection with providing security for costs in accordance with the orders of the Court. The opponent in respect of all of these matters was unsuccessful before Grove J. However, on appeal the opponent was partly successful in this Court. It was held that several of the items claimed as costs by the opponent within the category referred to in (b) above and some in categories (c) and (e) were of a kind that were allowable against the claimants. The opponent was unsuccessful in the opinion of the majority of the Court in respect of the other matters referred to. The matter was then remitted to the taxing officer for taxation of costs in accordance with the Court's judgment. The Court by its orders made no order providing for a certificate under the Suitors' Fund Act 1951. The present motion seeks such an order. I am dealing with this matter in accordance with s46 of the Supreme Court Act 1970, sitting alone. 2 UNREPORTED JUDGMENTS The questions of law which were raised by the appeal were novel. There had been no previous determination of the questions by this Court. They were also of some importance. However, it is sufficient to secure the certificate under the Act that it be shown that an appeal has succeeded on a question of law. This was the case here. Accordingly, the claimants are entitled to the certificate which they seek. Mr Cachia has appeared to oppose the grant of the certificate. The question arises whether he has any interest to oppose the certificate, the fund being established by the Act and administered by the Attorney General and the certificate providing for the payment of moneys not out of Mr Cachia's pocket but out of the fund. It is not necessary to determine that question. I shall assume, but without deciding, that he has a sufficient interest to be heard in opposition to the motion. Ihave therefore received and considered a document being the submissions of Mr Cachia in response to the application. The document raises two objections. The first is as to the suggested inequity in the position of a litigant in person who is a solicitor when compared to a litigant, like Mr Cachia, who is not. That suggested inequity is the subject of the Court's judgments in the appeal. There is no point now in elaborating upon what was said by the Court there. In any case the Suitors' Fund Act is neutral on the point being available to a respondent to an appeal who is or is not a solicitor. The second ground of objection is that a litigant should argue his or her case responsibly. Where there is a Failure to do so, so it is said, there should not be the facility of a certificate under the Suitors' Fund Act. It is true that s6 of that Act provides that the Court "may" grant a certificate. It may be that there is a residual discretion to deny the certificate in circumstances of an irresponsible argument at least as to those parts of the argument which are rejected. Again, it is not necessary here to determine whether "may" in the Act means "shall" when the premises provided by the Act are made out. It is sufficient for me to say that it would not accept that the claimants did not argue their appeal responsibly. The questions raised, as the judgments of the Court demonstrate, are matters of some complexity. As the different opinions of the Court demonstrate, there are also matters upon which minds may differ as to what the law requires. The Court's orders were assisted by the arguments both of the claimants and of Mr Cachia. The grounds for the application of a certificate under the Suitors' Fund Act are made out. The claimants should have the certificate they seek. The order which I therefore make is that, to the orders of the Court of 23 March 1989 be added an order, namely that the claimants have a certificate under the Suitors' Fund Act 1951 in respect of the costs of the opponent's appeal to this Court. There will be no order as to the costs of the application for the certificate today.