RAJSKI v BAINTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and Cripps JJA 22 June 1992 [1992] NSWCA 196 Mahoney JA This is a matter that comes before the Court as the result of an order made by Kirby P, President of the Court, on 12 November 1991. Some of the background in relation to the matter is as follows: Application was made to Clarke J in 1987, or prior to that date, in relation to existing proceedings in which the parties were concerned. His Honour dismissed the proceedings. An appeal was brought against Clarke J's order, and on 21 December 1990 the Court of Appeal dismissed the appeal against his Honour's decision. Subsequently the Court was moved to reconsider its order, and on or about 6 September 1991 that application was dismissed. It appears from the judgment and material before the Court that in or about October 1991 the High Court was moved for leave to appeal against the decision of the Court of Appeal. The High Court stood over that application to a date to be fixed being - and I state the matter summarily - probably not before the determination of the principal litigation. I say "probably" so as to not pre-empt any order the court might make. On 12 November 1991 there were proceedings before the President relating to a number of matters. The President, so far as is here relevant, made an order directing that the taxation of the costs so pending 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. The President made further orders to which it is not necessary to refer. Application has been made on behalf of Mr Bainton, the defendant in the proceedings, pursuant to s46(4) of the Supreme Court Act 1970 for an order discharging the order made by Kirby P on 12 November 1991 to which I have referred. Mr Jacobson has appeared to pursue that motion. Objection was taken in the initial stages of the application to two members of the Court sitting to hear the motion. That matter has been dealt with otherwise. Objection was also taken on behalf of the plaintiff in the proceedings, Mr Rajski, to the application being made upon the ground - and again I put the matter generally - that it is long out of time. The Court has put that matter aside in order to deal with the substance of the particular application. Mr Jacobson was asked to indicate the substantial matters by reference to which it was suggested that the order made by Kirby P was wrong. Mr Jacobson has - and I do not attempt to summarise in detail the argument he has put - made in substance three points. He has made those in different ways. He has suggested, first, that the order was made without due regard to the provisions of Pt52 R42 of the Supreme Court Rules. That rule provides that, where an order is made for costs and costs are to be taxed, the costs may, unless the Court otherwise orders, be taxed notwithstanding that the order for payment of costs is liable to be stayed thereafter, varied or discharged on appeal or otherwise. 2 UNREPORTED JUDGMENTS It was not suggested that the President was not conscious of the provisions there set forth. The suggestion I think was that the President had not given proper effect to it. The second submission that has been made was to the effect that the President took into account an irrelevant matter, namely that the principal proceeding between parties of which Mr Rajski was one is still outstanding and that it is desirable in the proper administration of justice that this matter not be pursued while those proceedings are outstanding, at least to the extent - and I am paraphrasing the nub of what was said by the learned President - that it would interfere with the disposal of the principal proceedings. What the President said in his judgment of 12 November 1991 in my opinion is not an irrelevant matter. It was a matter which the President was, in my opinion, entitled to take into consideration. The President said: "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 President went on to make other observations. I do not think that the submission that this was an irrelevant factor should be upheld. It is a matter to which attention had been given by a judge in the exercise of his discretion. The third matter that was put was that if this factor was a relevant factor, events have overtaken it. It was suggested, in substance, that the situation has changed since the President made his orders on 12 November 1991. The Court was given to understand that the proceedings were listed before Rolfe J, that is the principal proceedings, and that on or about 8 April 1992 his Honour delivered a judgment, a copy of which was tendered to the Court. Mr Jacobson, when asked, indicated that the substance of what his Honour said - and again I summarise what he has said - that the first of the several proceedings involved or coming under the description principal proceeding - I shall describe it as counsel has as the 1980 proceeding - should be heard first and that the other proceedings should be heard subsequently. The Court has been informed that no date has yet been fixed for the determination of the 1980 proceeding, and an application for leave to appeal against his Honour's decision refusing to disqualify himself from hearing the matter is pending. It is submitted that this is a factor which should lead to the alteration of the order made by the learned President. I do not think that that submission should be accepted. I think that what was done by Rolfe J, as it has been put to the Court, is one of the things which, in the course of the hearing of 12 November 1991, the learned President would have had in mind as a possible outcome of the matter coming before Rolfe J, to be dealt with as his Honour visualised. Assuming that there is before the Court material of this kind, I do not think that it should lead to any alteration of the order which the President has made. The Court has had from Mr Jacobson a summary of the matters to which I have referred: he has indicated that those are the matters on which he desired to address the Court and that there is no other matter involved. I have said this in order to indicate that the Court has taken into account all the terms of his argument. I have summarised them under the three headings to which I have referred. URJ RAJSKI v BAINTON (Cripps JA) 3 I do not think, whatever be the appropriate procedure for dealing with matters under s46(4) (a matter on which I express no opinion), whether the matter be brought before the Court initially or whether it be by way of reviewing or review, there has been shown anything which should lead this Court to take a view different to that taken by the President. In my opinion the application made on behalf of Mr Bainton should be dismissed. I would propose that it be dismissed with costs. Priestley JA I agree. Cripps JA I agree. Mahoney JA: The application is dismissed with costs.