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; 4. Otherwise motion dismissed; and 5. The costs of the motion reserved. Kirby P Before the Court is a motion with which I am dealing pursuant to s46 ofthe Supreme Court Act, 1970. In effect, as finally argued, the motion seeks relief of three kinds: (a) The setting aside of a certificate of taxation of costs which, pursuant to Pt52 RSOA(7) SCR, was entered by the appropriate officer of the Supreme Court on 19 June 1991 following the taxing of a bill of costs pursuant to an order for costs made by the Court constituted by Priestley JA, Hope A-JA and myself in Rajski v Mood g Ors (1989) 18 NSWLR 512; (b) The provision of a stay, the certificate having been set aside, of the taxation of costs then necessary until further order of the Court, in effect in order to ensure that the claimant is not distracted from his preparation as a litigant in person for proceedings which are shortly to come before the Supreme Court; 2 UNREPORTED JUDGMENTS (c) The grant of an indemnity certificate under the Suitors' Fund Act 1951 in respect of the costs order which was made in the case of Rajski v Mood (above). SETTING ASIDE A CERTIFICATE OF COSTS So far as relief (a) is concerned, I am of the view that it is appropriate to grant the relief sought. Indeed, in a very proper submission, counsel appearing for the opponents, Judges of the Supreme Court, conceded that it did appear, on the material placed before the Court, that a real question had arisen as to whether the claimant had ever received the bill of costs and notice of the taxation of costs prior to their determination. It is now reasonably clear that the claimant did not in fact receive the bill of costs or the notice. How exactly this happened is not entirely plain. Nor is it useful to explore the facts at any length. Certainly, the claimant would seem to be entirely innocent in respect of the circumstances. He is a litigant appearing without a solicitor. He filed a notice of the change of his address for service of documents in the proceedings. His previous notice of address indicated a home unit in premises at 25 Market Street, Sydney. He changed his address to another unit in the same building. That change was notified to the court by a document which has been exhibited. It is clear that the change was duly entered in the records of the Court. So much is demonstrated by material which has been placed before me. The claimant deposes that the notice was served on the Crown Solicitor representing the opponents. However, for whatever reason, the notice of change does not appear to have come to the attention of the solicitor acting for the opponents within the Crown Solicitor's Office, Mr Miles. So much appears from his affidavits. Although this last-mentioned conclusion is contested by the claimant, it is not useful to explore the issue in view of the concession offered for the opponents. Mr Miles was not cross-examined on his affidavits. Accordingly, I do not propose to resolve the matter except to say that it would appear to me most probable, if not virtually certain, that Mr Miles had no personal knowledge of the change of address of Dr Rajski. I find it virtually impossible to believe that, having such personal knowledge of a change of address, he would have proceeded in all of the circumstances of this case and acting as he was for these opponents, to secure the taxation of costs and a certificate of costs without proper notice to the claimant. Having regard to the approach which was adopted for the opponents before me, I have no hesitation in granting the relief first sought. The power to do so was not contested. See Pt52 R59(8) and (9) SCR. The certificate of costs should be set aside. In due course I will so order. STAY OF TAXATION OF COSTS That brings me to issue (b). So far as the provision of a stay of the taxation of costs is concerned, a somewhat similar issue arose before the Court, also constituted by me pursuant to s46 of the Supreme Court Act, in Rajski v R J Bainton, unreported, 12 November 1991. I will not repeat the circumstances of that case. They are set out in the reasons given by me on that day. The case arose out of proceedings brought by the claimant against Mr R J Bainton QC. See Rajski v Bainton (1991) 22 NSWLR 125 (CA) Ultimately, on the application of the present claimant in respect of the then proposed taxation of costs ordered by the Court in favour of Mr Bainton, I directed that such taxation be stayed until further order of the Court of Appeal or a Judge of Appeal. I also ordered that the proceedings be returned in the Court for further report on 4 May 1992. URJ RAJSKI v WOOD AND ORS [No 2] (Kirby P) 3 In my reasons, I referred to a number of considerations which led me to such a conclusion. It was submitted that the inapplicability of some of these distinguished the circumstances in that case from the circumstances in this case. For example, in Mr Bainton's case I referred to the fact that the transcript of argument of an application by the claimant in the High Court of Australia for special leave to appeal from the orders of this Court (which included the order for costs) appeared to indicate, at the stage at which argument terminated, that the High Court might have been persuaded to grant the claimant special leave to appeal. There was no application for special leave to appeal from the orders of this Court in Rajski v Mood, including the cost order. Then in Rajski v Bainton I mentioned the inter-relationship of the claim against Mr Bainton with the principal proceedings involving the claimant for which he is preparing. There is no such inter-relationship in the case of Rajski v Mood. That case concerned a collateral challenge by the claimant to the nomination or allocation of Badgery-Parker J to hear the principal proceedings involving him. The claimant was most concerned about such allocation. He sought to challenge it in successive proceedings. The first proceeding against Wood J and other judges of the Supreme Court was unsuccessful. However, in subsequent proceedings, picking up suggestions which were there made obiter, the claimant successfully secured from the Court an order relieving Badgery-Parker J of the obligation to hear the principal proceedings. See Raybos Australia Pty Ltd and Anor v Tectran Corporation Pty Ltd and Ord; Court of Appeal, unreported, 27 November 1990; (1990) NSWJB 157. An application for special leave to appeal to the High Court of Australia from the latter decision was refused. The claimant says that, in effect, and in the result, he was successful in the case of Rajski v Mood. The decision provided him with the key to secure the result he had there sought. That may be so. But in such matters the Court in our legal system looks to the orders made not in a global sense but in terms of the particular proceedings which are before it. The Court is concerned with the terms of the order not the reasons which sustained it. In the proceedings in Rajski v Mood the claimant was wholly unsuccessful. Two members of this Court (Priestley JA with whom Hope A-JA agreed) held that a challenge by the claimant to the nomination of a judge to hear his case was not justiciable. I reserved that question. But I held that the particular challenge made by the claimant was vexatious and an abuse of process. I included in my reasons reference to the alternative and regular relief which was available to the claimant. That relief he later, and successfully, pursued. Accordingly, the claimant faces an order for costs which was indubitably made by the Court against him in Rajski v Mood. That order remains in force. It has never been set aside by this Court. It has never been set aside by the High Court on appeal. There has never been an appeal. Accordingly, the costs so ordered must be paid by him. In the event that their amount is disputed, the proper procedure is for the taxation of a bill of costs. That is what the opponents wish now to have and to have without delay, the earlier certificate of taxation aside. The principal reason which moved me to provide the relief in the case involving Mr Bainton is referred to in my reasons in that case. I there said: "The most important consideration 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 4 UNREPORTED JUDGMENTS 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." Iremain of the view so expressed. Indeed, that view now has an added urgency in the light of the approaching date of the principal proceedings which I am informed are to start on 2 March 1992. It is expected, on that date, that a series of interlocutory proceedings involving the claimant's action will commence and that those proceedings will take some three months to complete. It would be unrealistic to put out of mind the very frequent involvement of the claimant in the Court of Appeal and elsewhere in interlocutory proceedings sometimes only remotely connected with the principal proceedings. Such interlocutory proceedings have distracted the claimant from prosecuting his principal claim. They have taken up a great deal of the time of the Court. They have involved cost and doubtless inconvenience to many parties. These considerations appear to have moved the High Court of Australia itself to delay the finalisation of the special leave application in the case involving Mr Bainton. That Court, likewise, appears to have been of the view that the claimant should be required for his own benefit, for the protection of those whom he has sued and for the good administration of justice to concentrate his whole attention on what have been called the principal proceedings. He is assisted in those proceedings, to some extent, by legal practitioners. But the principal burden of preparing for what is undoubtedly extremely complicated and substantial litigation falls upon him personally and unaided. Therefore, although the present case is somewhat distinguishable from that involving Mr Bainton, I am inclined to apply to it the main principle which I expressed in that case. I will, accordingly, provide a stay for a time. However, I will also require that the case be reported back to the Court as I did in the proceedings involving Mr Bainton. SUITORS' FUND ACT CERTIFICATE As to (c), the claimant sought a certificate of costs under the Suitors' Fund Act, 1951, s6. He said that, in effect if not in form, he had been successful in the case of RaJski v Mood and that, therefore, he should qualify for a certificate. As I have demonstrated above, he was not successful in that particular case. The Court was unanimously of the view that he was unsuccessful and that he should pay the costs of the opponents. There would be no basis in law for me to provide an indemnity certificate under the Suitors' Fund Act, 1951. The proceedings were not an appeal. The claimant failed in them. He failed because the particular vehicle he had chosen was misconceived or wrong. ORDERS For the foregoing reasons, the orders which I make in this motion are: 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 further order of this Court or of a as aforesaid until 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; 4. Otherwise motion dismissed; and URJ RAJSKI v WOOD AND ORS [No 2] (Kirby P) 5. The costs of the motion reserved. The appellant appeared in person. 5 Counsel for the respondent: PG Mahoney Solicitors for the respondent: H Roberts, State Crown Solicitor