RAJSKI v BAINTON (NO 1) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 15 February 1988 [1988] NSWCA 124 COSTS — objection to bill — execution of a certificate of costs — request by litigant in person for stay of execution of any certificate — litigant involved in preparation for other cases — opponent offers not to execute pending further order held: Noting undertaking no stay ordered of taxation of costs — but to avoid loss of time bill should take its place in queue and litigant should object in general terms. Supreme Court Rules, Pt52, r50A and r60. ORDERS 1. Note the undertaking given to the Court on behalf of Mr Bainton. 2. Direct Dr Rajski to file within two days a notice of objection in the terms stated to the bill of costs filed. 3. Direct the Registrar taxing the bill of costs to deal with the taxation as a contested bill of costs. 4. Give leave to either party to re-list the proceedings before the Court on two days' notice to the other. 5. Order that the costs of these proceedings be costs in the appeal. Kirby P On 19 November 1987 Clarke J gave judgment in proceedings between the present claimant, Dr Rajski, and the opponent, Mr Bainton QC. One of the orders which his Honour made was that Dr Rajski pay Mr Bainton's costs of lengthy proceedings which had been heard before his Honour. A bill of costs has now been prepared by the solicitor for Mr Bainton. I have been informed without objection, although no evidence to this effect has been placed before me by either party, that the bill has been brought in at approximately $40,000. The bill has now been filed in the Court. Under the Rules, Dr Rajski would be required to file a notice of objection setting out the grounds of any objections he has to the bill of costs and to do so in some detail. See Supreme Court Rules, Pt52, R50A(4); r60(51). It is known to the Court, from other proceedings, that Dr Rajski is presently preparing for litigation before Kearney J and for other proceedings in the Court of Appeal. He appears in person and is not now legally represented in any of these proceedings. As was made plain by other parties before the Court last Monday (and as is clear in any case from the history of this litigation), it is desirable that Dr Rajski should not be diverted, particularly from the preparation of his case before Kearney J. Mr Bainton is not involved in that case as a litigant. He has an entitlement to have brought to completion the costs order which Clarke J made and which is now the subject of the bill of costs which he has filed. I have now stated in sufficient detail the background to the present application. Dr Rajski has appealed to this Court from all of the orders made by Clarke J. By notice of motion Dr Rajski now seeks interlocutory orders that all of the orders of Clarke J be stayed until determination of the appeal filed in this Court. I am dealing with the motion pursuant to the powers conferred on me by s46 of 2 UNREPORTED JUDGMENTS the Supreme Court Act 1970. No affidavit was filed in support of the notice of motion. However, I have before me Clarke J's judgment. It sets out in some detail the general nature of the issues joined between the parties in the trial in the Supreme Court. It would appear appropriate to provide some relief against immediate execution of the orders made by Clarke J. To do so would be Consonant with the approach of this Court in respect of stays pending appeal explained in numerous decisions, but especially in Alexander & Ors v Cambridge Credit Corporation Limited (Receivers Appointed) & Anor (1985) 2 NSWLR 685, 693f. Nonetheless, because of the length of delays which typically attend the taxing of bills of costs in the Court, it is just that Mr Bainton's bill of costs should take its place in the queue so that he will not lose time whilst the appeal from Clarke J's decision is awaiting hearing in the Court of Appeal. The solicitor for Mr Bainton offers an undertaking on Mr Bainton's behalf that no steps will be taken to execute any Certificate of taxation in pursuit of the bill of Costs until further order of the Court. Dr Rajski says that this is not enough. He points out that he is required by the Rules to file a notice of objection to the bill of Costs in such detail as would divert him for several days from the preparation of his principal case, awaiting trial before Kearney J. It appears from the Rules that a notice of objection to a bill of costs can be filed by Dr Rajski in general terms setting out in that way his objections to the bill of costs. The Registrar informs me that the practice of the Supreme Court is to accept objections framed in that way. This, I believe, is what Dr Rajski should do. His general objection should be received as an objection to all items in the bill of costs so that the bill will be dealt with as a fully contested bill and will take its place for taxation as a contested bill before the Registrar assigned for that purpose, to tax it To the extent that so ordering involves relieving Dr Rajski from the obligations of the Rules, he should have that relief. The making of orders for a stay will not be necessary if the steps are taken which I have indicated, namely that Dr Rajski files an objection to the bill of costs in general terms and that Mr Bainton, by his representative, undertakes not to take any steps to execute any order made by the Registrar taxing the bill of costs until further order of the Court. Clearly it will be desirable at a later time, and before taxation, if Dr Rajski chooses to do so, that a more specific notice of objection to the bill of Costs should be received by the Court. Equally clearly before any enforcement of the Certificate of taxation is attempted, having regard to the undertaking given to the Court on behalf of Mr Bainton, it is desirable that the matter, if still in contest, should come back to the Court for further orders. Finally, if there are any developments pending the resolution of the case before Kearney J or the taxation of the bill by the Registrar, either party should have leave to return to the Court at short notice for the purpose of supplementary orders. The orders I therefore make are: 1. Note the undertaking given to the Court on behalf of Mr Bainton. 2. Direct Dr Rajski to file within two days a notice of objection in the terms stated to the bill of Costs filed. 3. Direct the Registrar taxing the bill of costs to deal with the taxation as a contested bill of costs. URJ RAJSKI v BAINTON (NO 1) (Kirby P) 3 4. Give leave to either party to relist the proceedings before the Court on two days' notice to the other. 5. Order that the costs of these proceedings be costs in the appeal. (See pp 5 and 6 of the transcript of this motion for additional discussion and 5 directions.)