Judgment

Mrs Cmunt is Wrongly Convicted and Sentenced for Breaching a Noise Abatement Direction

On 20 July 2018 the appellant, Mrs Marie Cmunt, was convicted in the Local Court at Queanbeyan, under s 277(1)(b) of the Protection of the Environment Operations Act 1997 (“POEOA”) of noise being emitted from a premises without reasonable excuse while a noise abatement direction given under s 276(a) of the POEOA remained in force, within 28 days following the time at which the direction was given. Mrs Cmunt was fined $1,500. By way of summons filed on 15 August 2018, Mrs Cmunt appealed against both her conviction and fine. Mrs Cmunt also seeks an order that the respondent, the Commissioner of Police NSW (“the Commissioner”) pay her costs of the appeal. The Court Attendance Notice (“CAN”) gave the date of the commission of the offence as “between 4.00pm and 10.00pm on 23 November 2016 at Berridale”. Mrs Cmunt is an elderly lady for whom English is a second language. At the proceedings in the Local Court, and on appeal, she required the assistance of an interpreter, although she does speak some English. On 30 November 2018, the Court made orders for the preparation of this appeal. Order 4 was as follows:

The prosecutor is to file and serve outline [sic] submissions on the appeal 28 days before the listed hearing date.

This order was not complied with. When the matter came before the Court at a pre-trial mention on 18 March 2019 (that is, five working days before the appeal was listed to be heard on 25 March 2019), Mr Mark Seymour, counsel, apologised for the non-compliance and consented to an order that the Commissioner file and serve its submissions by close of business that day. Mr Seymour informed the Court that at the appeal the Commissioner would not be relying upon any additional evidence other than that before the Local Court, which was contained in the appeal book. At 2.10pm later that day, the Court received an email from the solicitor for the Commissioner in following terms:

I have now received instructions that the Police will not press the charges in this matter. I have spoken with Mrs Cmunt just now and will write to her today confirming this.

Because Mrs Cmunt had already been convicted, and therefore, the charge could not be simply “withdrawn” as suggested, the Court listed the matter for further urgent mention the next day. When the matter came before the Court on 19 March 2019, Mr Seymour indicated that during the course of his preparation for the hearing, including drafting the Commissioner’s late submissions, it became apparent to him that Mrs Cmunt’s conviction could not be sustained on the evidence adduced in the Court below and that her appeal therefore had to be upheld. He confirmed that upon the appeal being upheld, the charge would be withdrawn. Mr Seymour described the conduct of the Commissioner in consenting to the appeal being upheld as “laudable”. It should, however, be observed that upon the Commissioner forming the view that Mrs Cmunt had been wrongly convicted, the Commissioner, and the Commissioner’s legal representatives, were under an ethical obligation to inform the Court of this matter and to agree to her conviction being set aside. Furthermore, had the Commissioner complied with the orders of the Court made on 30 November 2018, the need to bring this matter to the Court’s attention would have become apparent much earlier than five working days before the hearing of the appeal. The Court agrees that the appeal must be upheld. Because Mrs Cmunt seeks her costs, however, it is necessary to set out some brief reasons explaining why she is successful in her appeal, and therefore, whether she is entitled to an award of costs.

Nature of an Appeal Against Sentence and Conviction in this Court

In Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Preston J elaborated upon the nature of a Class 6 appeal (at [10]-[12]). In summary, an appeal against conviction is made to this Court as of right under s 31(1) of the Crimes (Appeal and Review) Act 2001 (“the Appeal and Review Act”). An appeal against conviction is dealt with by way of rehearing on the basis of certified transcripts and evidence adduced in the Court below (s 37(1) of the Appeal and Review Act). The Court may grant leave to adduce new evidence only if it is satisfied that it is in the interests of justice to do so (s 37(2) of the Appeal and Review Act and Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 at [13]). In an appeal against conviction the Court considers the matter afresh and resolves for itself the ultimate issues for determination. It is not necessary for the Court to find fault with the lower court’s reasoning (Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [6]). The Court may determine an appeal against conviction by setting aside the conviction or by dismissing the appeal (s 39 of the Appeal and Review Act). The role of this Court is to consider for itself Mrs Cmunt’s culpability upon the evidence that was tendered in the Court below, in addition to any further evidence adduced with leave on the appeal. There is, similarly, an appeal as of right against sentence pursuant to s 31(1) of the Appeal and Review Act. However, there is a distinction in the Appeal and Review Act between how appeals against sentence and appeals against conviction are to be conducted by appellants, insofar as there is no equivalent to s 37 of the Appeal and Review Act applicable to appeals against sentence. The Appeal and Review Act is therefore silent on the nature of an appeal against sentence, and in particular, whether leave is required to adduce fresh evidence on the appeal. In Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 the Court discussed this legislative inconsistency (at [33]-[51]) and concluded that (at [51]):

51. Notwithstanding the legislative lacuna on the nature of an appeal against sentence only under the Act, the Court proceeded on the basis that the appeal was by way of rehearing, absent the limitation on adducing fresh evidence contained in s 37(2). Thus the Court resolved for itself the ultimate issues for determination, in this case, the appropriate sentence to be imposed for the offence …

Consequently, an appeal against sentence proceeds by way of rehearing with the appellant not required to seek leave of the Court to adduce fresh evidence. Importantly, especially in the context of this appeal, an appeal against conviction or sentence is not for error of law (AJS Hotel Management Pty Ltd v Lismore City Council [2013] NSWLEC 10 at [69]). That is, it is not incumbent on Mrs Cmunt to establish that a conclusion was not open to the court below “in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard proved by the prosecutor” (Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 at 678C).

Elements of the Offence of Breach of a Noise Abatement Direction

Section 276(a) of the POEOA provides as follows:

276 Issue of noise abatement directions

If it appears to an authorised person that offensive noise is being, or has at any time within the past 7 days been, emitted from any premises, the authorised person may:

(a) direct the person whom the authorised person believes to be the occupier of the premises to cause the emission of the offensive noise to cease …

The term “offensive noise” is defined in the Dictionary of the POEOA to mean:

"offensive noise" means noise:

(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances:

(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.

Section 277(1)(b) of the Act provides that:

277 Contravention of noise abatement directions

(1) A person to whom a noise abatement direction has been given under section 276(a) must not, without reasonable excuse, while the direction remains in force:

…

(b) at any time within 28 days following the time at which the direction was given (or such shorter period as is specified in the direction), cause or permit offensive noise to be emitted from the premises.

The elements of an offence against s 277(1)(b) of the POEOA are therefore as follows, namely, that:

a person was given a noise abatement direction under s 276 of the POEOA; that person caused or permitted; offensive noise (as defined under the Act); to be emitted from the premises the subject of the noise abatement direction; without reasonable excuse; and at any time within 28 days of the date upon which the noise abatement direction was given.

A copy of the noise abatement direction was not provided to the Court by either party on the appeal, however, the CAN was in evidence before the Court. In the court below, the prosecutor failed to prove beyond reasonable doubt most of the elements of the offence.

Evidence Relied Upon the Commissioner in the Local Court and in this Court

The prosecutor relied upon video evidence of a policeman issuing Mrs Cmunt with the notice abatement direction (a fact in dispute in the court below). Critically, in relation to the offensive noise the prosecutor relied on the evidence of Ms Lesley Sands who, due to her advanced age and ill health, gave evidence orally by telephone. The evidence is reproduced in full (T13.03-15.25):

Q. Can you please state your full name?

A. Lesley Jill Sands, L-E-S-L-E-Y.

Q. I understand that you live in Kiparra Drive in Berridale?

A. Yes, correct, yes.

Q. I understand that on 26 November 2016 you made a statement, a typed statement, to Senior Constable David Cochrane?

A. Correct.

Q. I understand that in fact you made that statement three days after witnessing an incident on 23 November 2016.

A. I'm not sure of dates, but I was round at my girlfriend's, she lived next door, and they were just so noisy we couldn't sit outside.

Q. Can you recall how you had communication with the police officer to let him know all that?

A. Well, I went to the police station in Jindabyne with my daughter. I've got

emphysema so I can't talk very well, and I can't remember dates and times or anything. I know they bark and bark and bark when they get going.

Q. You say that you went to visit a friend I think that lives near 12 Kiparra Drive. Is that correct?

A. That's correct, yes.

Q. Okay, can you remember your friend's name?

A. Yes, Nita Wallace. She's now in Canberra. She's gone into care.

Q. On this particular day you went over there? A. Any particular day, can't remember.

Q. In relation to the one that you made a statement about, so you said that you go over there and it was too noisy to sit on the back?

A. Correct.

Q. When you say noisy, what was noisy?

A. The dogs were barking and jumping on the fence and the deck.

Q. Could you see the dogs at all? Do you know what colour they were?

A. Yeah, they were black. And big dogs, they jump very high onto a fence.

Q. Did you take any notice of how many dogs there were?

A. Well. There were quite a lot. No, I didn’t count them.

Q. Anything else at all about the rest of that day?

A. No, but they barked, barked, barked, when I came home, and they were still barking when I went to bed. I put earplugs in to try and stop them.

Q. Just roughly speaking, without saying what your address is, how many houses away from number 12 are you?

A. I'm round just the corner, up the next street. Still Kiparra Drive. I suppose you'd say it's - well, they're around one corner and I'm halfway up the other street.

Q. Could you roughly estimate how many metres away you might be, or feet, whichever-

A. No, no idea, dear.

Q. In any event you could hear them when you got home and you had to-A. Yes.

Q. -put earplugs in? A. Yes.

Q. Did that have any effect on you being able to sleep that night, or not, or~ A. Yes, well, it does make sleeping very hard.

Q. Okay. All right, thank you.

A. Thank you, dear.

HIS HONOUR

Q. Before you go-

A. Yes.

Q. -Maria Cmunt is entitled to ask you some questions.

HIS HONOUR: Would you like to ask some questions now?

ACCUSED: Yes. I try that, because lady has problem, you know, so I try that slowly in my broken English and if there be problem I ask translator.

Q. My question is, dear lady, if policeman was in your place and heard dogs barking?

A. No, no, the dogs weren't barking when the police were here. Only they bark when they want to, that's all I know, so I just can't, can't stand it.

Q. I don't, I don't understand.

ACCUSED: Can you translate that for me?

Q. Which would mean that police was not in your place at all. Is that true?

A. They’ve been to see me, yes, been to see me, but that’s all. But they weren’t there when they were barking like mad.

Q. Therefore police did not hear any barking in your place. Is that correct?

HIS HONOUR: No, you can't ask that question.

ACCUSED: Sorry?

HIS HONOUR: Can't ask that question. You can't ask this lady what the police said about the barking. Next question.

WITNESS: Please be quick cause I'm running out of oxygen.

HIS HONOUR: Have you got any more questions?

ACCUSED

Q. I would like to ask when, when you see the police, or how, how police know about your complaints?

A. Because I go - take them to them.

ACCUSED: Thank you.

HIS HONOUR

Q. Thank you for giving evidence.

Mrs Cmunt gave sworn testimony. Importantly she said (T18.38-19.17):

A. WITNESS: And another thing is that they must also measure noise which is heard in the property, because video through the computer did not show - did not prove level of the noise, because each computer has this button for—

Q. Registering the level of - the volume of sound.

A. WITNESS: Volume of the - volume of the - volume, volume button, and this volume button we can destroy completely noise or we can make it, you know, noise ten, 100 times bigger than when it is. Video only show picture, but if we are talking about the noise, noise must be shown in the place where, for example, this old lady was complaining. If I will be charged it's mean that police must go to her place and must measure noise which she can hear in her property and after that they must measure it and third step will be that they can come to us and see if noise come really from our place, but nothing like that happened, there is no proof.

There is - video didn't show any, any noise, when police came is the car, road was completely quiet, noise start only when policemen come and knock the door, which is normal, and there was only one dog inside, and this dog belonged to our son, who was sitting in the car with us, it was not my dog. Also important is know - important is to know that I am not owner of the dog, my husband is not owner of the dog, there are on sometimes dogs which, belong to family or friends and, you know, but they are under control, which mean that we are not responsible for anything, and what was - what we had from the video was barking from the property across the road, I said that, it was three dogs, one dog was in our property because somebody was knocking the door and nobody was at home, and that's nothing wrong, that's not case for charge, which mean that there is no proof, and also if police - this lady was complaining, but how is possible that police charge me for that if they had not any proof?

She further said (T21.15-21.20):

A. That I am, I am not guilty because I actually - nothing prove that I made something wrong. I am not owner of the dog, there was not barking when I came to the - when policemen came to the street. Dog was - one dog was barking when he was knocking to the door, and also lady just give, give her saying on the piece of paper to the police and police has nothing, nothing together with - didn't see it or didn't hear it.

In cross-examination, the prosecutor only sought to elicit evidence of the fact that Mrs Cmunt was a resident at 12 Kiparra Drive, Berridale, on 23 November 2016, and that she had appeared in the video along with Senior Constable Cochrane (T21.31-22.01). The prosecutor proffered no submissions on the elements of the offence to the Learned Magistrate. The Learned Magistrate convicted Mrs Cmunt and gave the following reasons for doing so (T22.19–23.31):

HIS HONOUR: Okay, thank you, you can have a seat if you like. In these proceedings Maria Cmunt is charged with one count pursuant to the Protection of the Environment Operations Act 1997 of allowing a noise emission within 28 days of a noise abatement direction. The prosecutor relies on s 277(1)(b) of the Act. The maximum penalty is a fine of $3,300. What the Act provides is that a person to whom a noise abatement direction has been given must not fail to cause the noise from the premises to cease within 28 days. Stop any noise, any offensive noise, within 28 days of the notice being given by the police.

Maria Cmunt gave evidence in these proceedings, and she has told me three times she did not know what the proceedings were about. That was all from the witness box. She went back into the body of the court and told me she did not know what the proceedings were all about, and Maria Cmunt gave detailed evidence about what she thought the law was, about what she saw as flaws in the police case, but on this day, the eighth time this has been listed, which has been going since 10 March 2017, she said she knew nothing about this offence. It is clear that Maria Cmunt does not have the same English as somebody who was born in Australia, and she has utilised the services of a very efficient interpreter to get across her side of events.

The police evidence came from a video which Maria Cmunt has apparently seen previously, and she did not object to it coming into evidence, and it Showed the police officer serving a notice, a noise abatement direction notice, to Maria, and the tape went for about 15 or 20 minutes and the officer had a great deal of difficulty telling Maria Cmunt that he was giving her the noise abatement direction. The reason that it went for long and it was so difficult, apparently, is because Maria Cmunt talked over the top of the officer for at least 75% of the tape.

But it was a long and detailed conversation, and it is impossible to believe that Maria Cmunt did not know, after the officer had been to her address - that she did not know about the noise abatement notice because there was so much conversation between her and the policemen about it. All of the conversation from Maria was in English. Not in the same English as somebody who was born in Australia, but she was able to convey what she said and what she meant, so I accept as a fact that the notice was served.

I have heard evidence on oath of another witness, an aged witness, lady in her 80s, today, that there was so much noise abating from the house I think three days after the notice that it was of great disturbance to her, she could not stay on the back verandah, she had to put earplugs in, so that noise that that lady spoke about, there was further evidence of that when the officer went to

Maria's house. He knocked on the door and there was a lot of barking from a significant number of dogs in Maria Cmunt's house.

Not one dog, not two dogs, not three dogs, more than that, and that corroborates what the lady who gave evidence about said there was a lot of dogs barking. He certainly saw at least one and heard a number of dogs because they came across on the tape. The noise was extremely loud on the tape, and that is the same noise that was heard three days later by one of the neighbours. Three days later Maria Cmunt knew that she had a notice to stop that noise, and so I AM NOW SATISFIED ON ALL THE EVIDENCE THAT THE CASE IS PROVED. Sergeant, are there any antecedents?

The Learned Magistrate, again with no assistance of submissions from the prosecutor, other than to note that “this is the 13th matter of the same type” (T23.30), proceeded to determine the imposition of an appropriate sentence for the commission of the offence. While Mrs Cmunt put to the Learned Magistrate that she was elderly and that the fine was “too much” for her, his Honour dismissed her submission without any reasons and imposed a fine of nearly half the maximum penalty ($3,300), namely, $1,500. As discussed above, the nature of this appeal means that Mrs Cmunt does not have to demonstrate error by the Learned Magistrate. However, it should be noted that the perfunctory manner with which she was dealt with in the court below, the failure of the prosecutor to take that court through the elements of the offence, and the failure of the Learned Magistrate to make findings with respect to those elements, justifiably resulted in a sense of grievance on the part of Mrs Cmunt. While Local Court Magistrates are generally overworked and under resourced, it was not correct to submit, as Mr Seymour did, that the court below was entitled to deal with criminal matters in a manner that obviated the need to engage with the elements of the offence. In my experience, this is not what occurs in the Local Court. On the contrary, clear, cogent, well-reasoned and sufficiently detailed judgments are the hallmark of the overwhelming majority of Local Court decisions the subject of Class 6 appeals in this Court. That, as Mr Seymour also submitted, the Learned Magistrate had dealt with seven charges with respect to Mrs Cmunt the day before was irrelevant (of which there was no evidence before this Court, in any event). This charge was a new and separate charge. Given the serious consequences that Mrs Cmunt faced if found guilty (a criminal conviction and fine), she was entitled to have the prosecutor properly prove the charge and for the court below to make appropriate findings on the evidence before it. Neither occurred in the court below, nor, as it transpired, in this Court.

The Offence is Not Proved Beyond Reasonable Doubt

At least three elements of the offence have not been proven by the prosecutor either in the court below, or on appeal given that the prosecutor did not seek to rely on any further evidence. First, there is no evidence whatsoever that the alleged breach occurred at any time within 28 days of the date upon which the noise abatement direction was given. The evidence of Ms Sands is silent on this issue. Second, the evidence that Ms Sands gave as to where the barking emanated from was wholly equivocal. That is to say, it is not clear whether the barking dogs about which she complained were actually located on Mrs Cmunt’s premises, being the premises the subject of the direction (namely, 12 Kiparra Drive, Berridale). The highest the evidence rose was that the dogs were in the vicinity of the premises. There was no evidence that they were located at the premises. Therefore, it cannot be demonstrated beyond reasonable doubt that the dogs in question were at any premises that Mrs Cmunt occupied. Third, given the unchallenged evidence of Mrs Cmunt that the dogs did not belong to her and that she was not responsible for them, the prosecutor has not demonstrated to the criminal standard that she “caused” or “permitted” the alleged breach of the noise abatement direction, or even if she did, that she not have a reasonable excuse for doing so. These three reasons alone are sufficient to dispose of the appeal, leaving aside the question of whether one demonstrated event of indeterminate duration of dogs barking – dogs do bark – is sufficient to constitute “offensive noise” for the purpose of s 277(1)(b) of the POEOA. The Commissioner agreed with the first reason as to why the appeal should be upheld and did not seek to put any submissions in opposition to the remaining two reasons.

Appeal Against Sentence

Given the success of Mrs Cmunt’s appeal against conviction it follows that the appeal against sentence must also be upheld.

Is Mrs Cmunt Entitled to Costs?

Section 49(4) of the Appeal and Review Act provides in respect of the Court’s power to award costs in a Class 6 appeal that:

49 Miscellaneous powers

(4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

Section 70(1) of that Act relevantly states as follows:

70 Limit on costs awarded against public prosecutor

(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or

(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter:

(i) that the prosecutor was or ought reasonably to have been aware of, and

(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.

Because Mrs Cmunt was unrepresented, she has no claim for legal costs. She told the Court, however, that she had nevertheless incurred expenses relating to the translation of documents to and from English and travel costs to and from Queanbeyan Local Court. It cannot be said that the circumstances in s 70(1)(a), (b) or (c) apply in the context of this appeal. However, in my opinion, it is arguable that s 70(d) is apposite by reason of the prosecutor’s failure to adduce evidence that supported the possibility of a finding of guilt beyond reasonable doubt. This is not to say that a costs order should be made in every case where a conviction at first instance is overturned because the prosecution has failed to prove an element of the offence. But in these proceedings, the evidence relied upon by the prosecution to secure the conviction was, on any reasonable view, so inadequate that it constituted exceptional circumstances pursuant to s 70(1)(d) of the Appeal and Review Act. In Kogarah City Council v El Khouri [2014] NSWLEC 196; (2014) 212 LGERA 208, Preston J upheld a costs order made by a Local Court in circumstances where the prosecutor had failed to adduce evidence dealing with a clear element of the offence. Although the Court in that case was dealing with s 214 of the Criminal Procedure Act 1986, that provision is identical to s 70 of the Appeal and Review Act save for one important exception, namely, s 214 limits the recovery of costs to “professional costs” (which includes professional expenses and disbursements), whereas no such limitation exists in s 70. To similar effect is the decision in Preston v Zapantis [2015] NSWLEC 121. The Commissioner relied upon a decision of the Court of Criminal Appeal in Ryde City Council v Pedras [2009] NSWCCA 248 to argue that as a self-represented litigant, Mrs Cmunt could not claim her travel and translation costs under the Appeal and Review Act. Mr Seymour expressly declined to make submissions “on the facts” as to why a costs order in Mrs Cmunt’s favour ought not be made, instead relying wholly on the authority of Pedras. At issue in Pedras was whether the defendant could claim costs for his lost earnings as a taxi driver. The Court noted that “costs” was not defined in the Appeal and Review Act, but applying the decision in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, it held that costs could not be awarded for the defendant’s personal time (at [28], per Giles JA, Buddin J agreeing at [35]):

28. The reasoning of the majority in Cachia v Hanes applies. "Costs" means money paid or liabilities incurred for professional legal services, and costs orders are intended to reimburse a party for costs incurred, and "are not intended to compensate for some other disadvantage or inconvenience suffered by the litigant" (at 414, per Mason CJ and Brennan, Deane, Dawson and McHugh JJ). Loss of earnings can not be treated as a disbursement (at 417, ibid).

Justice Harrison was more equivocal, stating in obiter (at [122]-[123]):

122. Finally, on the question of costs, the majority in Cachia v Hanes (supra) at [24] said this:

"[24] We should add that the English legislation and rule represent a straightforward approach to the problem, in contrast to the approach adopted in some cases where courts have treated the loss in earnings of a litigant incurred in the course of the presentation or conduct of his case as a disbursement ((19) See Kerridge v. Foley, unreported, Supreme Court of New South Wales in Equity, 19 August 1970; Secretary, Department of Foreign Affairs and Trade v. Boswell [1992] FCA 629; (1992) 111 ALR 553; cf. Petrunic v. Barnes (1989) VR 927; Australian Blue Metal v. Hughes (1970) 2 NSWR 119.). Clearly, that is merely an indirect way of recompensing a litigant for time spent in the preparation or conduct of his case which, if it is not contemplated by the relevant legislation or rules, is not permissible. Of course, a litigant who qualifies as a witness is entitled to the ordinary witness's fees."

123. I would not accept that anything said in that case was confined to civil cases or that it did not apply to the present case. No authority is cited for such a proposition. If the principle applies to the present case then the award of costs to the defendant as compensation for his time or lost income was erroneous. In Cachia the appellant was claiming his loss of time in in the preparation and conduct of his case and for out of pocket expenses, namely, travelling expenses. The majority held that while the appellant was entitled to a witness fee, he was not entitled to his travelling expenses in addition to, or in lieu of, the fee.

Pedras was endorsed in Wang v Farkas [2014] NSWCA 29; (2014) 85 NSWLR 390 (at [21] and [34]). In Cachia the appellant was claiming his loss of time in the preparation and conduct of his case and for out of pocket expenses, namely, travelling expenses. The majority held that while the appellant was entitled to a witness fee, he was not entitled to his travelling expenses in addition to, or in lieu of, the fee. The seminal paragraph of the judgment is that quoted by Harrison J in Pedras above. Mrs Cmunt is not claiming any loss of income. She is, however, claiming her travelling expenses, which on the authorities above, she is not entitled to. But, as was made plain in Cachia, as a witness, Mrs Cmunt is entitled to a witness fee. With respect to the fees that she states that she paid to an interpreter to translate documents from Czech to English and vice-versa, in my opinion, Mrs Cmunt is entitled to have these costs paid by the Commissioner. There is no basis to construe the “costs” referred to in s 49 of the Appeal and Review Act as excluding out-of-pocket expenses in the nature of disbursements. In Dive v Lin and Liu [2017] NSWLEC 153 Preston J opined as follows (at [54]):

54. The High Court held in Cachia v Hanes (1994) 179 CLR 403 that the costs for which rules of court provide are confined to money paid or liabilities incurred for professional legal services and do not include compensation for time spent by a litigant in person who is not a lawyer in preparing and conducting his case: at 409, 410-411, 414. However, an order for costs can include reimbursement of expenses incurred in the proceedings. A litigant in person is entitled to be reimbursed for out-of-pocket expenses incurred in and for the purposes of litigating the proceedings: see also Cachia v The Hills Shire Council (2010) 210 LGERA 191; [2010] NSWLEC 136 at [29]-[31].

In G E Dal Pont’s Law of Costs (4th ed, 2018, LexisNexis Butterworths), the learned author defines a disbursement as “money that, for the purposes of the…proceedings has been actually paid out to others, such as witnesses, counsel…professional advisers and so forth” and “money paid on behalf of a client to a third party that can properly be included in the lawyer’s bill of costs” (at paragraph 1.8, p 4). In Farkas the Court of Appeal held that the ordinary meaning of disbursements was “money paid out or expended” (at [21] per Basten JA). Although the Court declined to make an order for costs in respect of interpreter’s fees in Dive, those proceedings concerned a s 56A appeal from a decision of a Commissioner in proceedings within Class 2 of the Court’s jurisdiction. The Court held that because the respondents, who had enjoyed success in the appeal, were unrepresented, the most that they could recover were out-of-pocket expenses incurred in and for the purpose of the appeal. The Chief Judge specifically remarked that, “if the respondents engaged an interpreter to assist them in defending the appeal the expense [interpreter’s fees] might answer the description of being an expense incurred in and for the purpose of the appeal” (at [57]). However, in Dive his Honour refused the claim on the basis that the respondents had not proven on admissible evidence the precise quantum of the fees (the respondents were claiming 12 hours at $100 per hour), had not established that the fees had in fact been paid, had not established that all 12 hours were used to prepare for and defend the appeal, and had not established why the use of an interpreter was necessary given Mr Lin’s command of English ([57]-[58]). In relation to the interpreter’s fees, in my opinion, these constitute a disbursement that goes beyond “some other disadvantage or inconvenience suffered by a litigant”. I see no reason why she is not entitled to claim these fees as costs and I find, for the reasons explained above, that it is both just and reasonable that the Commissioner pay these costs.

Orders

The formal orders of the Court are therefore that:

the appeal is upheld; the conviction and fine are set aside; the respondent is to pay the appellant’s costs in the limited manner described in this judgment; and the exhibits are to be returned.

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