Kowal v Zoccoli - [2002] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7519 of 2000

LIONEL KOWAL
LIONEL KOWAL	Appellant
v.
ANTHONY ADAM ZOCCOLI	Respondent

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JUDGES:	WINNEKE, P. and ORMISTON and PHILLIPS, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 June 2002
DATE OF JUDGMENT:	19 June 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 100

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Courts – Costs – Taxation – Loss of income by litigant attending to instruct – Potential witness - Whether loss of income can be “costs” – Claim dismissed – C.C.R. Chapter I Rules 63A.29 and 63A.69, Appendix A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P. Cawthorn	Blake Dawson Waldron
For the Respondent	Mr T.P. Tobin	Riordan and Partners

WINNEKE, P.:

I will invite Phillips, J.A. to deliver the first judgment in this matter.

PHILLIPS, J.A.:

This appeal arises out of a proceeding in the County Court brought by the plaintiff, the present respondent, for damages for professional negligence against the would-be appellant, an ophthalmic surgeon. On the fifth day of the trial, 20 August 1999, the matter was resolved when the plaintiff accepted the defendant's offer of compromise. Orders were made in consequence, including an order that the defendant do pay the plaintiff's costs taxed on Scale D up to and including 11 August 1999 and that the plaintiff pay the defendant’s costs as and from 12 August 1999, taxed on scale D.

As directed by the trial judge, bills of costs were prepared and exchanged. On 30 August 2000 the Taxing Registrar taxed the defendant's costs at $55,169.07, which included, under Item 56 of the bill, which was headed "Dr Kowal's fees and expenses for attendance at the court throughout the trial as the Defendant", the sum there claimed of $25,383.30. This was put in the bill in a column headed "Disbursements". The claim was made apparently on the basis that Dr Kowal, the defendant, had lost his professional fees on the five days of his attendance during the trial. The amount was quantified by reference to his appointment book, which for those days was full, although, it would appear, none of the patients was seen, and the claim was for fees so lost.

After the taxation, the plaintiff sought a review of the determination of the Taxing Registrar under Rule 63A.57 of Chapter I of the County Court Rules. On 23 October 2000, a judge ordered that the amount allowed for costs be varied by substituting, for the amount claimed in Item 56 of the bill, the sum of $1,085, being an allowance of $217 per day according to the scale of allowances for witnesses in the County Court. As this effected a reduction in the costs of more than $24,000, the

doctor would now appeal.

At the outset it should be noted that such an appeal is from an interlocutory order. An interlocutory order may be made either before or after judgment in the main proceeding, and it seems to me clear that, while the orders made by the judge on 20 August 1999 were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kowal v Zoccoli

Details

AGLC: Kowal v Zoccoli [2002] VSCA 100
Case: [2002] VSCA 100
Decision Date: 19 June 2002

CaseChat Overview and Summary

The case of Kowal v Zoccoli involved a dispute between the plaintiff and the defendant regarding the assessment of costs in a taxation matter. The plaintiff, Kowal, sought reimbursement for lost income due to attending to instruct and being a potential witness during the proceedings. The case was heard in the Federal Circuit Court of Australia. The primary legal issue before the court was whether the loss of income incurred by the plaintiff could be considered as "costs" under the relevant rules and thus be recoverable.

The court examined the definitions and provisions of the relevant rules, particularly C.C.R. Chapter I Rules 63A.29 and 63A.69, and Appendix A. It was determined that the loss of income by a litigant who is also a potential witness is not typically recoverable as a cost of the proceedings. The court reasoned that such a loss does not fall under the category of expenses reasonably incurred in the conduct of the litigation. Instead, it is a personal consequence of the litigation rather than a direct cost of the proceedings themselves. Therefore, the court dismissed the plaintiff's claim for reimbursement of lost income.

The decision underscores the distinction between personal losses incurred by a litigant due to their involvement in litigation and the costs that are actually incurred in conducting the proceedings. As such, the court held that the plaintiff's loss of income was not recoverable under the relevant rules. Consequently, the plaintiff was not entitled to the reimbursement sought.

Orders