RAJSKI vy YELDHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and Cripps JJA 22 June 1992 [1992] NSWCA 199 Mahoney JA This matter comes before the Court upon a motion by the claimant Dr Rajski seeking, amongst other things, an order that a certificate of taxation be set aside. The situation is that the representatives of the opponent claim that a bill of costs was properly served upon Dr Rajski by it, as I understand it at least, being sent to the solicitor then acting for him in the ordinary way. The certificate was taxed, presumably, in the absence of Dr Rajski and a certificate of taxation was issued. An application was then made by the present motion on 3 February 1992 to set aside the certificate of taxation and for other relief. It appears from the proceedings that there will be a contest of fact as to whether and in what way the bill of costs and the notice of taxation were served upon Dr Rajski. If it appears that they were not served, then prima facie that is a fact relevant to a decision to set aside the certificate of taxation. If there is a substantial problem in relation to the matter, for example, if the bill of costs did not effectively reach the solicitor for Dr Rajski or Dr Rajski at the time, by reason of some defect in the procedure, that would be a factor, although, of course, not a determinant factor, in deciding whether the certificate of taxation should stand or whether the matter should be sent back for a fresh taxation of the bill of costs. But that matter is not of significant importance. An application has been made by Dr Rajski for the matter to be returned to a judge - he submits a judge of the Court of Appeal - to be dealt with. The Court has made enquiries as to what is involved in the hearing of the matter. The matter is one which will involve some issue of fact in relation to a determination of the question of whether the bill of costs was served or effectively came to the notice of the relevant parties. That is not a matter which is proper for the Court presently constituted to deal with. In these circumstances, the view of the Court is that the matter should be dealt with by a single judge. The issue remains whether it should be dealt with by a single judge of this Court, or whether it should be a single judge of the Division. It has been put by Dr Rajski that this proceeding was one which commenced in this Court being, as I understand it, a summons for contempt. The suggestion has been that it is a matter which, therefore, ought to be determined by a single judge of this Court. The inference is, I suppose, that the bill of costs is the bill of costs of proceedings in the present Court? RAJSKI: That is correct. Is in present Court and is entitled to be heard in this Court. MAHONEY JA: The matter is appropriate to be dealt with by a single judge. I interpolate parenthetically that it may be (and the Court has raised the possibility with counsel for the opponent Mr Mahony) that the better way of dealing with the matter, rather than contesting the issue of service, would be for the bill of costs to be again served in a way as to which there can be no doubt; 2 UNREPORTED JUDGMENTS in that way, the issue of fact to be determined and the effect of the exercise of the discretion based upon that determination could be put aside. However, that is a matter for the parties. In all of the circumstances, in my opinion if an issue of fact remains to be determined and cross-examination is to proceed as indicated, it is one that should be decided by a single judge. My view would be that the matter should be returned to a single judge of the Common Law Division to deal with the matter and make the relevant findings. When those findings are made, then a determination can be made whether the bill of costs should be set aside. I do not think that the fact that the proceedings were proceedings in this Court is sufficient to warrant that a judge of this Court should deal with the issues. Priestley JA I agree. In so far as the matter of remittable transfer is concerned, I agree with Mahoney JA. Cripps JA I also agree. Mahoney JA: The order of the Court is that the matter should be returned to a judge of the Common Law Division to determine the issues of fact, if it is necessary to do so, in the light of the observations that the Court has made. I would propose that the costs of the proceedings today be reserved to the judge dealing with the matter. Priestley JA: I agree. Cripps JA: I also agree. Mahoney JA: The matter will be remitted accordingly. Rajski: If he this week tells me he does not contest, I will have 21 days to reply, because if it is 4 May I would not get anyway, but if Mr Mahony this week says he has no objection to it... Mahoney JA: I have heard what you had to say about the bill of costs. What he decides to do is up to him. Rajski: I would say that the bill of costs be from 4 May.