MENYHART v GOLOTTA and GALLUZZO T/as GALLUZZO and GOLOTTA [1992] NSWCA 152

MENYHART vy GOLOTTA and GALLUZZO T/as GALLUZZO and GOLOTTA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and CRIPPS JJA 27 November 1992, 27 November 1992

[1992] NSWCA 152

This was an action by a solicitor for costs. The appellant claimed the judge at first instance erred in law in the findings made and in denying procedural fairness at the hearing. In particular, it was alleged his Honour erred in allowing proceedings to be commenced without the serving of an itemised bill of costs and without waiting for 30 days to elapse after such service.

Held:

His Honour had not erred and had gone out of his way to help the appellant. The issue of service of a bill of costs was never raised in the pleadings before his Honour, it was clear from the evidence that the appellant knew the contents of the bill and did not raise it. There can be no claim that a trial judge denied procedural fairness unless the point raised as evidencing unfairness formed no part of the hearing.

Legal Practitioners Act (1898) s21

Cripps JA This is an appeal from the decision of Judge Johnson published on 5 December 1989 in which he gave a verdict and entered judgment for the plaintiff for an amount, in all, of $31,282.86, being made up as to $16,441.05, the amount owing to the plaintiff in circumstances which I will come back to and the amount of $14,841.23 with respect to interest claimed since the date referred to in the District Court Act.

When the appeal was originally lodged, it was alleged that his Honour erred in three ways. Later, that was amended to allege that his Honour erred in nine ways and it is now alleged that his Honour erred in four ways.

Before I come to the errors alleged, I will give a brief history of the litigation. The appellant, Mr Menyhart, was injured in two motor vehicle accidents. He sued in negligence. He was then represented by Mr Sankey of Norbert and Lipton, Solicitors. He sued the defendants, who were presumably insured by the GIO. He recovered damages. He did not think they were sufficient and he wished to appeal. He went to another firm of solicitors and that firm of solicitors included Mr Golotta who is the plaintiff in the present proceedings and the respondent to this appeal.