RAJSKI v WOOD AND ORS [No 2] [1992] NSWCA 198

RAJSKI v WOOD AND ORS [No 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 3 February 1992, 3 February 1992

[1992] NSWCA 198

COSTS — setting aside certificate of taxation where bill not served prior to taxation — entitlement to Suitors' Fund Act certificate. PRACTICE AND PROCEDURE — costs — stay of taxation.

COSTS — certificate of taxation — bill of costs not served on party — held: Certificate should be set aside and new taxation ordered.

PRACTICE AND PROCEDURE — Court of Appeal — costs of unsuccessful summons — taxation of costs pursuant to order of Court of Appeal — litigant in person — concurrent substantive proceedings involving litigant — whether taxation of costs should be stayed for a time to permit litigant to prepare for substantive proceedings — held: (by Kirby P, exercising the powers of the Court of Appeal pursuant to the Supreme Court Act 1970, s46(1). The taxation of costs should be stayed until further order. Leszek Rajski v R J Bainton, Court of Appeal, unreported, 12 November 1991 followed.

COSTS — unsuccessful party to summons in Court of Appeal indemnity certificate under Suitors' Fund Act 1951 sought — held: Certificate refused as (a) proceedings was not an appeal; and (b) the claimant had wholly failed in them.

Suitors' Fund Act 1951, s6. Supreme Court Rules, Pt52, R50A(7), Pt52, R59(8), (9).

ORDERS

1. Set aside the certificate of costs of the taxation officer of the Supreme Court dated 19 June 1991 and order that, subject to (2), the bill of costs which has now been served upon the claimant be taxed by an officer appointed for the purpose of taxing bills of costs in due course;

2. Stay the taxation of the costs as aforesaid until further order of this Court or of a Judge of Appeal;

3. Order that the proceedings be further returned before the Court of Appeal for mention and report on the stage reached in the principal proceedings on Monday 4 May 1992;