LESZEK RAJSKI v RJ BAINTON [1991] NSWCA 231

LESZEK RAJSKI v RJ BAINTON SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

KIRBY P 12 November 1991, 12 November 1991 [1991] NSWCA 231

PRACTICE AND PROCEDURE — Costs — taxation of — stay of taxation — held: Taxation of costs of a litigant in person should be stayed pending conclusion of heavy principal litigation for which he is preparing.

PRACTICE and PROCEDURE — Court of Appeal — costs — taxation of pursuant to orders of the Court of Appeal — application for special leave to appeal to the High Court of Australia concurrent substantive proceedings involving claimant whether taxation of costs should be stayed — held: (by Kirby P, exercising the powers of the Court of Appeal pursuant to the Supreme Court Act 1970, s46) (1) Taxation of the costs of the appeal should be stayed because (a) it was undesirable to divert the litigant from preparation for the principal proceedings; (b) the urgency of the taxation, to provide a basis for an order for security of an appeal to the High Court, was removed by the order of that Court standing over generally the application for special leave; and (c) from the transcript of argument it appeared that the litigant had some prospects of success in gaining special leave which might result in the setting aside of the cost order, rending taxation of costs a futility.

Kirby P The general background to this application is to be found described in reasons which I gave on 15 February 1988 for orders which were then made.

In short, Dr Leszek Rajski (the claimant) brought proceedings against Mr R J Bainton QC (the opponent) before Clarke J. Those proceedings were determined by the judgment of his Honour in favour of the opponent. The costs of the proceedings before Clarke J which were ordered in favour of the opponent, have now been taxed. A certificate as to their taxation has been produced. That certificate indicates that the certified costs are $41,302.24. Clarke J's orders remain undisturbed by any order of a court with authority to disturb them. Accordingly, the costs are a debt which is owed by the claimant to the opponent.