[2014] WASCA 65

JURISDICTION

: SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MOLEIRINHO -v- TALBOT & OLIVIER LAWYERS PTY LTD [2014] WASCA 65 : PULLIN JA NEWNES JA MURPHY JA : 13 NOVEMBER 2013 : 28 MARCH 2014 : CACV 34 of 2013 : ELSA MOLEIRINHO MANUEL MOLEIRINHO Appellants AND TALBOT & OLIVIER LAWYERS PTY LTD Respondent

CORAM

HEARD DELIVERED FILE NO/S BETWEEN

ON APPEAL FROM: Jurisdiction Coram Citation : SUPREME COURT OF WESTERN AUSTRALIA : HALL J : PORTUGUESE CULTURAL AND WELFARE CENTRE -v- TALBOT OLIVIER PTY LTD [2013] WASC 91 : LPA 14 of 2012

File No

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Catchwords: Costs - Application to set aside costs agreements as 'unreasonable' - Legal Practice Act 2003 (WA), s 222 - Relevant principles - Extent of obligation of court to assist unrepresented litigant - Application decided in part on basis of matter not in issue between the parties - Lack of procedural fairness Legislation: Legal Practice Act 2003 (WA), s 222 Result: Appeal allowed in part Category: B

Representation: Counsel: Appellants Respondent Solicitors: Appellants Respondent : : In person Talbot & Olivier Lawyers : : In person No appearance

Case(s) referred to in judgment(s): Abram v Bank of New Zealand [1996] FCA 635; (1996) ATPR 41-507 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171 Damjanovic v Sharpe Hume & Co [2001] NSWCA 407 Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 Harrison v Hocking [2000] WASC 188
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Jovetic v Stoddart & Co (1992) 7 WAR 208 Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 National Mutual Life Association of Australasia Ltd v Campbell [2000] FCA 852; (2000) 99 FCR 562 Portuguese Cultural and Welfare Centre v Talbot Olivier Pty Ltd [2013] WASC 91 Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 Stoddart & Co v Jovetic (1993) 8 WAR 420 Tobin v Dodd [2004] WASCA 288 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

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JUDGMENT OF THE COURT 1

JUDGMENT OF THE COURT: This is an appeal against a decision of Hall J, who refused an application by the appellants for three costs agreements they had entered into with the respondent to be cancelled, pursuant to s 222 of the Legal Practice Act 2003 (WA) (the Act): Portuguese Cultural and Welfare Centre v Talbot Olivier Pty Ltd [2013] WASC 91. The appellants did not have legal representation before the primary judge or on the appeal. The respondent appeared by counsel on the application before the primary judge but chose not to take part in the appeal.

Background
3

For several years, the Portuguese Cultural and Welfare Centre Inc (PCWC) had operated a community radio station under a licence issued by the Australian Broadcasting Authority. That authority was subsequently replaced by the Australian Communications and Media Authority (ACMA). In 2007, the ACMA refused to renew the licence and the PCWC sought legal advice. They retained the respondent, an incorporated legal practice, to act for them. The first appellant (Mr Moleirinho) and his son were office bearers in the PCWC and were primarily responsible for instructing the respondent solicitors on its behalf. The first costs agreement between the PCWC and the respondent was entered into on 30 January 2008. It stated that the scope of work to be undertaken would comprise:
a) b) c) d) advising PCWC with respect to the preliminary view of the ACMA on the renewal application; reviewing that preliminary view and other documents relating to the operation of PCWC and the licence; preparing comments and submissions on behalf of PCWC in response to the ACMA's preliminary view; and liaising with PCWC and ACMA with respect to the PCWC's renewal application, the ACMA's preliminary view and the submissions.

The costs agreement specified the lawyers who would carry out the work and their individual hourly charges. It also provided an estimate of the total legal costs and disbursements for the work, in the sum of $4,000 for professional fees and $400 for disbursements, both amounts exclusive of GST. The agreement noted, however, the difficulty of providing an
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estimate and it also noted that the total amount may vary as a result of various factors, including changes in the scope of the instructions and the actions of third parties.
6

The agreement was signed by Mr Moleirinho and a Michele West as authorised representatives of the PCWC. By the agreement, the signatories confirmed that they were duly authorised to instruct the respondent on behalf of the PCWC and they guaranteed the payment of the fees and disbursements. The work contemplated by the costs agreement was carried out and, on 1 February 2008, the respondent rendered an invoice in the sum of $7,775 (including GST). Subsequently, consideration was given to commencing proceedings in the Federal Court seeking a review of the ACMA's decision. On 13 March 2008, a further costs agreement was entered into. The scope of work was described in the agreement as:
(a) drafting a letter of advice in relation to: (i) the grounds on which PCWC may lodge an application to the [Federal Court] for an Order of Review of the [ACMA's] decision of 24 January 2008 to refuse to renew the licence (Application); and the prospects of PCWC's success should it elect to lodge an Application.

(ii) (b) (c)

reviewing relevant judicial authority and legal commentary in order to prepare the letter of advice referred to in paragraph 2(a) above. if upon review of the letter of advice referred to in paragraph 2(a) above PCWC elects to lodge an Application; (i) (ii) (iii) drafting the Application; drafting supporting documentation for the Application; and attendance on lodging the documents referred to in paragraphs 2(c)(i) and (ii) above at the Federal Court.

The agreement again specified the lawyers who would carry out the work and their respective hourly charges. An estimate of legal costs and disbursements of $11,000 (excluding GST) was given. In the agreement the respondent noted that the fees payable under the statutory scale were

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generally lower than the fees under the agreement so that the remuneration to which the respondent would be entitled under the agreement may be considerably greater than the amount they would be entitled to under the statutory scale.
10

The agreement was signed by the appellants as authorised representatives of the PCWC and by the agreement they guaranteed payment of the fees and disbursements. A further costs agreement was made on 20 March 2008 (the third costs agreement) in respect of the filing and service of an application in the Federal Court. The scope of work described in that agreement was as follows:
(a) preparing and filing on behalf of PCWC a Form 56 application for an order of review under the ADJR Act of ACMA's final decision (Application); generally acting on behalf of PCWC in respect of the Application, including all work required in relation to and arising from the Application and all advice necessary to be given to you in respect of or relating to the Application.

11

(b)

The estimate contained in this letter does not include the cost of any work that does not relate to the Application. It does not include the costs of any appeal of the Application or any work relating to any further application to ACMA or any similar work.
12

The agreement specified the lawyers who would carry out the work and their respective hourly charges. An estimate of legal costs and disbursements was given as follows:
Approximately $30,000-$45,000 in professional fees (including an allowance of approximately $15,000 to $25,000 for Counsel) up to and including a 1 day hearing in the Application. Approximately $2,000 to $3,000 in disbursements. (both exclusive of GST)

13

In the agreement, the respondent noted that it estimated the costs which would be payable by the appellants for the work if the costs agreement was not entered into would be two-thirds of that amount. It also noted that it was difficult to predict the likely course of litigation and that the estimate of costs may need to be reviewed as the litigation proceeded.

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The agreement was signed by Mr Moleirinho as an authorised representative of the PCWC and by Mr Moleirinho on behalf of Mrs Moleirinho in the same capacity. As before, under the terms of the agreement the signatories guaranteed the payment of the fees and disbursements. The total estimate of fees and disbursements made by the respondent in the three costs agreements was therefore an amount of some $63,400 plus GST, or some $69,740 inclusive of GST. The respondent issued a number of invoices between 30 April 2008 and 25 September 2008, totalling $91,373.67 (inclusive of GST). An amount of $38,762 was paid. The respondent commenced proceedings in the Magistrates Court against the appellants for the balance of $52,611.67. After the Magistrates Court proceedings were commenced, the appellants sought to have the costs taxed in the general division of this court. It seems that the proceedings in the Magistrates Court are not being pursued pending the outcome of the taxation. In the course of the taxation, Mr Moleirinho raised a question as to the validity of the costs agreement and the taxation was adjourned to allow the appellants to make an application, pursuant to s 222 of the Act, for the agreements to be cancelled (see now s 288 of the Legal Profession Act 2008 (WA)). That application was filed on 10 October 2012 in the names of the PCWC and the appellants. It was listed for hearing on 19 November 2012. On 14 November 2012, an affidavit sworn by Mr Moleirinho and a seven page document described as a 'submission' were filed. Both documents had been prepared by Mr Moleirinho. It will be necessary to come back to those documents. The respondent did not file any affidavit in response to the application and it did not seek to cross-examine Mr Moleirinho. The respondent's counsel told the primary judge that the respondent had not filed any affidavit in response to the application because it was difficult to ascertain the grounds upon which the appellants relied in seeking to have the costs agreements cancelled and it was also unclear whether the appellants sought to set aside all or only one of the costs agreements (ts 15).

15

16

17

18

19

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The reasons of the primary judge

20

The primary judge noted that the supporting affidavit sworn by Mr Moleirinho referred to statements made in certain numbered paragraphs of a document marked 'A'. There was no document marked 'A' attached to the affidavit and whilst the 'submission' had been filed with the affidavit, the paragraph numbers referred to in the affidavit bore no relationship to the paragraph numbers in the 'submission'. His Honour went on to say:
An examination of the submissions reveals that they are correctly so described and are largely assertions. In these circumstances, I am compelled to a conclusion that the affidavit provides no admissible evidence in support of this application. However, I have used the submissions as a basis for understanding the nature of the application [10].

21

His Honour identified four points relied upon by the appellants in support of the application [22]. In summary, they were: 1. 2. 3. the respondent had done work that had not been agreed to and was unnecessary; the work was not done competently; the third costs agreement was signed under duress because the respondent told the appellants that 20 March 2008 was the last day on which the application to the Federal Court could be filed; and Mr Moleirinho signed the third costs agreement on behalf of his wife without authority to do so and at the urging of a lawyer employed by the respondent.

4.

22

As to the first, his Honour considered it was beyond the scope of the application to determine whether work was unnecessary or beyond the scope of the agreement [23]. He concluded that he had insufficient information to enable him to come to a firm conclusion about the reasonableness of the agreement based on the amount of the solicitors' charges [23]. If there was an issue over whether specific work was necessary, was within the terms of the agreement, or was done without instructions, those were issues for the taxation [24] - [25]. His Honour did not expressly deal with the second issue, but it is implicit that he regarded it as being of the same nature as the first issue. The primary judge rejected the third complaint. His Honour said there was 'no sworn evidence' to support it [26]. In addition, his Honour
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considered that even if the appellants were told that the third agreement had to be signed quickly it did not follow that it was not made voluntarily [26]. The only material differences between it and the first two agreements were the scope of works and the estimate of fees. Very little time was necessary to appreciate the import of those parts of the third agreement.
25

As to the fourth complaint, his Honour observed that there was no evidence of Mrs Moleirinho in support of it. The primary judge said he found it difficult to believe that Mr Moleirinho signed the agreement without Mrs Moleirinho's authority. His Honour also noted that in his written submissions Mr Moleirinho had said that after receiving the agreement for execution he had contacted the PCWC committee and they had agreed to go ahead with the application [27]. The primary judge concluded that neither the circumstances in which the agreements were made, their terms, or their effect, led to the conclusion that they were unreasonable [28]. Issues as to whether all the work done was necessary and within the terms of the PCWC's instructions were appropriately to be determined on taxation [29]. His Honour therefore dismissed the application.

26

Grounds of appeal
27

The grounds of appeal are as follows:

1. 2. The judge failed to obey and apply the Law Stated on Supreme Court Act 1935, section 24, paragraphs (1) and (2). That the judge failed to his legal duty to realise the legal fact of the three agreements in dispute, those agreements not legally PERSONAL BOUND. This caused materially harmful to our CASE. That the judge failed to control the Law regarding the Elsa Moleirinho P.P Signature by Manuel Moleirinho. This caused materially harmful to our Case. The judge failed to distinguish between as how the other Party legally Breached the agreements, And the excessive costs charged by the other Party This caused materially harmful to our case. 5. That the judge was biased, with our consent, accepting evidence during the trial from the other Party such as the agreements, and

3.

4.

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objected to see our evidence. Such as the Federal Court Application. This caused materially harmful to our Case. 6. That the judge only referred to some negative precedent Cases, and ignored the Positive Cases Similar to our Case. This caused materially harmful to our case.

Disposition of the appeal

28

The grounds of appeal are not in a proper form and it is unnecessary to canvass them as they stand. As they were explained by Mr Moleirinho on the hearing of the appeal, the appellants' substantive contentions appear to be that: 1. The primary judge should have cancelled all of the costs agreements on the grounds that: (1) (2) 2. the appellants were not aware they would be personally liable for the costs (ground 2); the costs charged were unreasonable (ground 4).

The primary judge should have cancelled the third costs agreement on the grounds that: (1) it was executed under duress because Mr Moleirinho was told that it had to be executed within an hour to enable an application to be made to the Federal Court (ground 1); it was executed by Mr Moleirinho in Mrs Moleirinho's name without her authority (ground 3).

(2) 3.

The appellants were denied procedural fairness, in that the primary judge: (1) admitted into evidence copies of the three costs agreements, tendered by the respondent, but did not admit a copy of the application to the Federal Court which the appellants sought to tender (ground 5); and referred to cases adverse to the appellants but did not rely on cases cited by the appellants (ground 6).

(2)

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It is appropriate to turn first to the statute. Section 222 of the Act was, relevantly, in the following terms:
1. 2. A costs agreement may be reviewed by the Supreme Court upon application by summons or on a reference under section 235(2). If, in the opinion of the Supreme Court, the costs agreement is unreasonable (a) (b) the Supreme Court may reduce the amount payable or cancel the costs agreement; and the costs may be taxed in the ordinary way.

30

An applicant for review under s 222 of the Act bears the burden of proving that the costs agreement is unreasonable. See Jovetic v Stoddart & Co (1992) 7 WAR 208; Stoddart & Co v Jovetic (1993) 8 WAR 420; and Harrison v Hocking [2000] WASC 188 [92]. The circumstances in which a costs agreement will be 'unreasonable' within the meaning of s 222 are not susceptible to precise definition. As the Full Federal Court observed in National Mutual Life Association of Australasia Ltd v Campbell [2000] FCA 852; (2000) 99 FCR 562 [36], where the legislature has deliberately used a word of broad content such as 'unreasonable', judicial attempts to achieve a precise definition of the word are likely to run into difficulty and the legislative intention can be unduly restricted by the use of synonyms and definitions. The court referred to Kitto J's caution in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626, 633, that 'fallacy lurks in paraphrase'. Similar comments apply to attempts to import into s 222 equitable concepts such as duress and undue influence, which were raised by both sides before the primary judge. Such concepts are apt to deflect attention from the statutory language. However, without attempting to be exhaustive, a costs agreement may be unreasonable because of the circumstances in which it came into existence, because the terms were unreasonable, or because the effect on the client was unreasonable: see Jovetic v Stoddart & Co; Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171 [83].

31

32

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Against that background, we turn to the issues which arise on the appeal. Grounds 2, 4, 5, and 6 of the grounds of appeal can be dealt with quite shortly and it is convenient to deal with them first.

Ground 2
35

The contention that the appellants were not aware that the agreements bound them personally was not a matter raised before the primary judge. There was nothing in the appellants' 'submission' which referred to it and it was not raised orally. If it had been raised, it is a matter which could possibly have been met by evidence from the respondent. It is too late to raise it now for the first time: Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491. This ground must fail.

Ground 4
36

This ground is without merit. Putting aside the question whether the content of the appellants' 'submission' constituted evidence, there was nothing contained in that document, or otherwise, which was capable of demonstrating that the amount of the costs was unreasonable. There is nothing to suggest that the hourly rates chargeable under the respective costs agreements were excessive or that at the time the total costs estimates were made they were not reasonable estimates. While ultimately the total costs charged in each case substantially exceeded the estimate, that does not of itself establish that the costs agreements were unreasonable. It was clear from the costs agreements that the estimates were no more than estimates and that they might require revision as the matter developed. Whether, as the appellants allege, work was done which was unnecessary or outside the scope of the appellant's instructions, or that the costs charged for the work which was done was excessive, are matters for taxation.

Ground 5
37

The appellants submitted that they were denied procedural fairness in that the primary judge allowed the respondent to tender the costs agreements at the hearing but wrongly refused to allow the appellants to tender the application to the Federal Court. This submission is misconceived. A review of the transcript reveals that in the course of the hearing the primary judge pointed out that neither party had produced the three costs agreements which the appellants sought to have cancelled. His Honour asked Mr Moleirinho if he had any objection to the respondent tendering the costs agreements. Mr Moleirinho said he did not

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(ts 20) and the costs agreements were then tendered by the respondent. The costs agreements were properly received by his Honour.
38

The appellants were not denied the right to tender the application to the Federal Court. During the course of the hearing Mr Moleirinho mentioned that he had a copy of the application to Federal Court with him (ts 26), but he did not seek to tender that or any other document. Nor was it necessary that he do so for the proper determination of the application. In the appellants' written submissions on the appeal it was also submitted that the appellants were denied procedural fairness because they were not aware that the application had been listed for hearing and thought that it was listed simply for directions. This is not a matter which was raised before the primary judge; on the contrary, Mr Moleirinho, who appeared on behalf of both appellants, gave every indication that he was ready to proceed (see ts 13). It is also difficult to reconcile with a document also filed on 14 November 2012 in which Mr Moleirinho apologised for the late lodgement of the affidavit and submission, attributing that to the 'shortage of time between the listing day and the hearing day'. In any event, it is not suggested that if there was such a misapprehension it prevented the appellants putting before the primary judge any material or submissions that they would otherwise have put. This contention is also without merit. This ground of appeal must be dismissed.

39

40

Ground 6
41

The appellants contend that the primary judge failed to take into account cases which assisted them, in particular, Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 and Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447. We should note that it does not appear that those, or any other, cases were cited by the appellants. In any event, those cases were not relevant to the issues before his Honour. There is nothing to suggest that his Honour overlooked any relevant authority. This ground is without merit.

Grounds 1 and 3
42

These grounds relate to the circumstances in which the third costs agreement came to be executed. In the 'submission', Mr Moleirinho, having referred to receiving a letter of advice from the respondents on 19 March 2008, went on to say:

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19.

Reading the letter of advice we realized that Talbot Olivier failed to understand ACMA's Preliminary and final report to which PCWC paid Talbot Olivier $4,000.00 to check and act on it. On the next day 20th March 2008 PCWC received the agreement stating the costs $30,000.00 to $45,000.00 and requesting that this agreement to be signed and submitted to their office on the same day because 20th March 2008 was the last day to file the application in Court. Maxim - contra proferenten. There was no time to negotiate the terms of the contract with Talbot Olivier. We were pressured to sign the agreement accordingly to the ASIC regulations 6(2) this is an unfair contract. On the same day 20th March 2008, I Manuel Moleirinho came home from work about 2pm and the agreement from Talbot Olivier was in the letter box. I contacted the PCWC Committee told them the urgent situation as stated and they agreed to go ahead with the application. By this time it was very confusing as on one hand Talbot Olivier was advising PCWC that there was no case against ACMA then on the other hand pressured PCWC Committee to sign the engagement between PCWC and Talbot Olivier so as to file the application in Court. This was only one rushed hour between receiving and submitting the agreement. There was not enough time to read it and check of its contents properly. My wife Elsa Moleirinho the PCWC Secretary was away in Mandurah on a day trip with the seniors, caring for them. As Elsa was not available to sign to agreement and Mr. Smith insisted that the agreement had to be signed by the Chairman and the Secretary. Therefore Mr. Smith suggested that I sign on her behalf pp Elsa Moleirinho. I trusted Mr. Smith and I followed his instructions. Now I realize that this in fact was illegal I did not have any authority from Elsa Moleirinho to so. PCWC was misled on this issue.

20.

21.

22.

23.

43

In his reasons for decision, the primary judge said:

26. As regards the claim that the third agreement was signed under duress, there is no sworn evidence to support this. Even if the applicants were told that the agreement had to be signed quickly it does not follow that it was not made voluntarily. The terms of the agreement were materially the same as those of the first two agreements. What was different was the scope of works and the estimate of fees. Very little time was necessary to appreciate the import of those parts of the third agreement. As to the claim that Mr Moleirinho signed the third agreement on behalf of his wife without her authority, there is no evidence from

27.

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Mrs Moleirinho to that effect. Mr Moleirinho does not deny signing the form and it is difficult to believe that he did so without having any authority to execute the document. Further, Mr Moleirinho said in his written submissions that he contacted the PCWC committee after receiving the third agreement and 'told them the urgent situation as stated and they agreed to go ahead with the application'.
44

It is not clear what his Honour meant in [26] by the statement that there was no sworn evidence to support the allegation that the third costs agreement was executed under duress; that is, whether he meant that there was nothing in the 'submission' which was capable of making out such a case or whether he meant that the relevant statements in the 'submission' had not been made on oath. If his Honour meant the latter, in our view he proceeded upon a basis different to the basis upon which the matter was argued before him. To explain that, it is necessary to return to the form of the documents filed on behalf of the appellants in support of the application: that is, the affidavit sworn by Mr Moleirinho and the 'submission'. The appellants' first language is not English and it appears that Mr Moleirinho, who is a bricklayer, has had limited formal education. The affidavit itself graphically illustrates, with respect, the appellants' lack of knowledge of legal processes and procedures. It was in the form of a pro forma affidavit verifying a list of documents in an action in the Supreme Court. It is two pages in length and the relevant part is as follows:
Page No 1. 2. Affidavit of Annexure 'A' 1-2 3-79

45

46

I the abovementioned plaintiff (or defendant) defendant, make oath and say as follows: 1. The statements made by me in paragraphs 1, 3, 4 and 5 of the list of documents now produced and shown to me marked 'A' are true. The statements of fact made by me in paragraph 2 of the said list are true. The statements made by me in paragraph 6 of the said list are true to the best of my knowledge, information and belief.

2. 3.

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The only alteration to the pro forma document was the amendment to the number of pages in 'Annexure A', which was altered in handwriting from '3-7' to '3-9'. The 'submission' is seven pages in length and the alteration was apparently made on the basis that it constituted annexure 'A', albeit the 'submission' was not in fact marked 'A'. The 'submission' also consisted of 37 numbered paragraphs, rather than the six referred to in the affidavit. It is, however, evident that Mr Moleirinho intended by the affidavit to verify the statements in the 'submission' and believed that he had done so. That, we think, appears not only from the alteration to the affidavit but also from Mr Moleirinho's oral statement to the primary judge in the course of the hearing of the application that the basis of the appellants' application was 'As I explained on [sic] the submission and confirmed with the affidavit' (ts 13). It is the case that some of the material in the 'submission' was in the form of argument and had no evidentiary value. But there was other material which was not of that nature, including a significant portion of the description of the circumstances in which the PCWC came to engage the respondents and in which the costs agreements were signed. No objection was taken by the respondent to the form of the affidavit and it is evident that the respondent's counsel, Mr Daly, was content to proceed on the basis that the 'submission' constituted part of the affidavit. Thus, for instance, Mr Daly complained that it was 'difficult to ascertain' from the affidavit what grounds the appellants relied upon and whether they sought to set aside all or only one of the costs agreements (ts 15). He also submitted that there was no evidence in the affidavit that the estimate of costs given by the respondent was unreasonable, 'apart from the fact that the agreement was apparently exceeded' (ts 18 - 19). As the affidavit itself contained nothing at all in the nature of evidence, Mr Daly was plainly treating the appellants' written 'submission' as part of the affidavit. We would add that had an objection been taken to the form of the affidavit, it would, in my view, have been incumbent upon his Honour to give the appellants, as unrepresented litigants, an opportunity to put the affidavit into a proper form. What a judge ought do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case: Abram v Bank of New Zealand [1996] FCA 635; (1996) ATPR 41-507, 31; Tobin v Dodd [2004] WASCA 288 [14]. The boundaries of intervention are flexible but the lodestar is a fair and just trial. It is clear, however, that a judge must not intervene to such an

48

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extent that he or she cannot maintain a position of neutrality or as to give an unrepresented litigant a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored: Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1, 14; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26] - [29].
52

The court must have particular regard to its responsibility where the litigant in person does not have English as their first language: Damjanovic v Sharpe Hume & Co [2001] NSWCA 407 [163]. In this case, the appellants were obviously out of their depth, English was not their first language, and the form of the affidavit plainly reflected their lack of knowledge of legal matters. The affidavit was readily capable of being rectified without unfairly disadvantaging the respondent. There were, on the face of it, no factors such as delay or prejudice to the respondent which might have operated to preclude the appellants from being given an opportunity to put the affidavit into a proper form. In order to ensure a fair and just determination of the application, it would have been necessary that they be given that opportunity. As it turned out, the respondent did not object to the form of the affidavit. Nor did the primary judge comment on it in the course of the hearing. In light of the way in which both sides had approached the matter, if his Honour intended to determine the application on the basis that there was no evidence before him in support of the application, he was obliged to inform the appellants of that and to give them an opportunity to rectify the affidavit. He did not do so and, indeed, at the end of the hearing gave the opposite impression. At that point his Honour said to Mr Moleirinho:
You have had an opportunity to put evidence before me and you have done that and there is an affidavit before me and that is what I am taking into account. Talbot Olivier has not put any information before me other than the three costs agreements which have been handed up. That is what I am going on. Are you happy for me to do that? (ts 30) (emphasis added)

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Mr Moleirinho said that he was.

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In the circumstances, to the extent his Honour may have determined the issue on the basis that nothing contained in the 'submission' constituted sworn evidence, his Honour, in our respectful view, denied the appellants procedural fairness. In any event, we consider, with respect, that his Honour misdirected himself in dismissing the application, so far as it related to the third costs agreement, on the basis, in effect, that there was no evidence that the costs agreement had been executed 'under duress', and that the circumstances in which it was executed were consistent with it having been executed 'voluntarily'. It is, as mentioned earlier [32], undesirable to import concepts such as duress, drawn from other areas of the law, in applying the statutory language. His Honour was no doubt drawn into that by the way in which the parties' submissions were put, but in the end the question was not whether the third costs agreement had been made under duress, or whether it had been made voluntarily, but whether, in the circumstances, it was 'unreasonable'. An agreement may be made voluntarily but nevertheless be unreasonable, within the meaning of s 222 of the Act, by reason of the circumstances in which it was made. On the question whether the third costs agreement had been executed by Mr Moleirinho on behalf of Mrs Moleirinho without her authority, it is the case, as the primary judge noted, that there was no affidavit by Mrs Moleirinho to that effect. However, in circumstances where the appellants were unrepresented, the weight that can be given to that is limited. Mr Moleirinho said, in substance, that he found the costs agreement in the letter box when he got home from work at 2.00 pm on 20 March 2012 and was told by the respondents that it had to be signed that day. Mrs Moleirinho was in Mandurah and could not be contacted. It is implicit in Mr Moleirinho's account that he had not previously discussed the matter with his wife. According to Mr Moleirinho, he was persuaded by a representative of the respondent to sign the third costs agreement on Mrs Moleirinho's behalf, without being told that he could only do so if he had her authority. Mr Moleirinho said he did not have Mrs Moleirinho's authority - a position, we might observe, reiterated very forcefully by Mrs Moleirinho in oral argument on the appeal (ts 14). Mr Moleirinho's version of the relevant events was unchallenged. There was, as we have mentioned, no cross-examination of Mr Moleirinho and the respondent did not file an affidavit in opposition to the application. In the circumstances, it is not easy, with respect, to understand the basis upon which his Honour considered it was 'difficult to believe' that Mr Moleirinho did not have Mrs Moleirinho's authority [27].
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The third costs agreement related to further work at an estimated cost substantially greater than the estimates in the previous two costs agreements combined. Moreover, in executing the third costs agreement on Mrs Moleirinho's behalf the appellant did so not only in Mrs Moleirinho's capacity as the secretary of the PCWC but also as a guarantor. While the fact that Mr Moleirinho contacted the PCWC committee for its approval before executing the costs agreement may be relevant to the former, it was not relevant to the latter.
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In our view, the primary judge erred in dismissing the third costs agreement on the basis that he did. We would set aside the order of the primary judge so far as it applies to the third costs agreement, but not otherwise. In light of the amount involved and the time that these proceedings have already taken up, it would obviously be desirable for this court to determine the application in respect of the third costs agreement. We do not, however, consider that it is possible to do so. The matter must be remitted to the general division of the court for determination. We have reached that view for the following reason. As mentioned earlier [19], on the hearing of the application, counsel for the respondent told the primary judge that the respondent had not filed any affidavit in opposition to the application because the respondent was uncertain on what grounds the appellants sought to have the agreements cancelled and whether the appellants sought to have one or all of the agreements cancelled (ts 15). That led to an exchange between the primary judge and Mr Moleirinho, in the course of which Mr Moleirinho clarified to some extent the grounds upon which the appellants relied and from which it ultimately emerged that the appellants sought to have all three costs agreements cancelled (ts 16 - 17). Following that exchange, the primary judge asked the respondent's counsel whether the respondent wished to file material in response to the application or whether the respondent contended that the application should be dismissed on the material before the court. Counsel said that on the material produced by Mr Moleirinho there were no grounds upon which the agreements could properly be cancelled, but if the primary judge was not minded to dismiss the application on that basis the respondent sought an opportunity to file affidavits in opposition to the application (ts 23).

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That was a quite unsatisfactory response. It was not appropriate for the respondent to hold off filing affidavit evidence until it had tested the water. Regrettably, however, it seems that his Honour's attention was then diverted to other issues and the matter was left at that. In the circumstances, the respondent should be given the opportunity to file affidavit evidence in relation to the third costs agreement if it wishes to do so. The matter should therefore be remitted to the general division of the court for appropriate directions and for hearing before another judge.

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Conclusion
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We would order that: 1. the order of the primary judge dismissing the appellants' application be set aside so far as it relates to the third costs agreement; the appellants' application so far as it relates to the third costs agreement be remitted to the general division of the court for directions and determination before another judge; and the appeal otherwise be dismissed.

2.

3.

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