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. The claimant appealed to this Court from the orders of Clarke J. The appeal was heard by a Court comprising Samuels, Mahoney and Handley JJA. The Court delivered a judgment affirming the decision of Clarke J and, therefore, leaving undisturbed his Honour's orders, including the orders as to costs. The Court ordered the claimant to pay the opponent's costs of the appeal. There were subsequent proceedings brought by the claimant to have the Court reopen its orders. Those proceedings failed. However, the claimant has sought special leave of the High Court of Australia to appeal against the orders of this Court. That Court heard his application for special leave on 4 October 1991. Placed before me, without objection, has been the transcript of the argument on the special leave application. The High Court, comprised of Brennan, Dawson and Toohey JJ, ordered that the application for special leave should stand adjourned to a date to be fixed, to be brought on for hearing on one month's notice by either party. Announcing the order of the Court, Brennan J said: 2 UNREPORTED JUDGMENTS "The Court would intimate that we would not expect that any such notice be given or any attempt made to bring the matter on at any time prior to the resolution of the principal litigation from which this litigation has come, that is the litigation between Tectran on the one hand and Raybos and Dr Rajski on the other." The formal order of the High Court was thus that the summons for special leave to appeal should stand adjourned to a date to be fixed. It so remains at this date. Meanwhile, the opponent wishes to have taxed the order for costs in his favour made by this Court when dismissing the appeal and when dismissing the subsequent motion for the review of its judgment. In normal circumstances it would be entirely appropriate that the costs in this Court, pursuant to such orders, be taxed promptly. They are in dispute. The solicitor for the opponent has pointed out that it is desirable that the entitlement to costs in this Court should be crystallised to finalise the record of the Court of Appeal and indeed of the Supreme Court. The orders for costs in this Court remain valid and binding until set aside by an order of the High Court. No such order has been made. The opponent is entitled to have the same rights as any ordinary litigant in the Court. No fewer because he is one of her Majesty's counsel, although no more. The claimant, however, requests that the taxation be stayed. He does so upon a number of grounds. The first that he is presently preparing for what Brennan J described as the "principal litigation". By an affidavit which has been read before the Court today it is disclosed that Rolfe J has ordered that the hearing of a notice of motion to consolidate the various proceedings which make up the principal litigation be set down on 2 March 1992. I have been informed that it is anticipated, after certain preliminary procedural matters are disposed of, that the principal proceedings will be set down to be heard between May and July 1992. The claimant deposes to the fact that his former solicitor, Mr Johnson, who from time to time has appeared for him and for companies in his interest, has ceased to practise as a solicitor and has been admitted to the Bar. Because of this, so it is said, the claimant does not have the assistance of Mr Johnson. He is preparing for the principal proceedings as a litigant in person. Needless to say that is a major task. The Court has said in many cases, and I repeat now, that it is highly desirable that the principal proceedings be brought to finality. The myriad of interlocutory, ancillary and attached proceedings which have sprung up have, to some extent, occurred by reason of the delays in the conclusion of the principal litigation in which the claimant and his company are involved. I therefore approach the present application keenly aware of the importance of doing nothing which would needlessly disturb, or provide excuses for disturbing, the attention of the claimant to the principal proceedings. Secondly, the claimant's affidavit deposes to a suggestion that one of the reasons offered to him by the opponent for concluding the taxation of costs, is so that the opponent might be in a position to seek an order for security of costs should the High Court of Australia grant special leave to appeal against this Court's orders. As the High Court has stood over the application for special leave to appeal generally this would not appear to be an urgent requirement at this stage. URJ LESZEK RAJSKI v RJ BAINTON (Kirby P) 3 The opponent's entitlement to have his costs taxed is not in dispute. He will have those costs taxed in due course, if the cost order remains undisturbed. Indeed, normally, he would have an entitlement to have the costs taxed before the application is finalised in the High court of Australia. But the urgency of having the costs taxed is removed by the order which the High Court has now made. Thirdly, the order of the High Court was made against the background of a transcript of argument on the special leave application, which I have read. It is not for me to divine the intention of the High Court. Great care must be taken in reading the transcript of argument on a special leave application. I know from my own experience that, in leave applications, judges frequently put propositions in order to test them, without necessarily expressing any concluded opinion. For all that, the opinions which, however tentatively, have been expressed by the High Court in the special leave application, as evidenced in the transcript, do appear to indicate at least a tentative intention, at the time the argument concluded, to seriously consider - indeed to favourably consider - an application for special leave to appeal from the orders of this Court. If that intention remains unchanged when the matter is returned in the High Court, the possibility of an order eventually being made by the High Court disturbing the cost and other orders of this Court cannot be put out of mind. That is not to deprive the opponent of a right to taxation of his costs. But it is, at least, to raise the real possibility, as I judge it, that the costs order may, in due course, be disturbed. Obviously this cannot be predicted with certainty, least of all by me. I do not venture upon prediction. But, at the least, the possibility that taxation of costs will be a futility is another consideration to be borne in mind. The most important consideration, however, is the first. I believe that the good administration of justice requires that the claimant should give his whole attention to the conclusion of the principal litigation. This obliges him to concentrate on the issues raised in those proceedings. The issues raised by the taxation of costs of the appeal in the case concerning the opponent should not distract him at this time. The claimant asked that I should order that no further bill of costs be served upon him until a date to be appointed. The Court's orders are not made in order to settle the emotional, spiritual or other feelings of a litigant. They are made to protect and preserve his rights. I do not believe it is appropriate to make an order that no bill of costs be served, because such service would cause upset to the claimant. To the extent that such was a basis for the application, I would not accede to it. However, I am sure that the representative of the opponent has heard the high importance which I attach to the conclusion of the principal litigation. There would appear to be no reason why any further bill of costs should be served, or any further step taken in the taxation of the costs, until such time as the Court knows the prospect of conclusion of the principal litigation. As I have been informed that the agenda for those proceedings should be known some time in May 1992, the appropriate order is to stand over the present application for report to this court on 4 May 1992, being the first motion day in May 1992, and to direct a stay of the taxation presently set down for 14 November 1991 until any further order which the Court may make on 4 May 1992. The orders which I therefore make, exercising the powers of the Court of Appeal in accordance with s46(1) of the Supreme Court Act, are: 1. Direct that the taxation of the costs of the opponent in the Court of Appeal, presently set down for 14 November 1991, be stayed until further order of this Court or of a Judge of Appeal; 4 UNREPORTED JUDGMENTS 2. Order that the motion be further returned for mention and report on the stage reached in the principal proceedings on Monday 4 May 1992; and 3. Reserve the costs of this application. 5 The claimant appeared in person. Counsel for the opponent: RR Bruce, Solicitor Solicitors for the opponent: Bruce and Stewart Turton