Kowalski v Andrew Sim & Ors No. DCCIV-96-957

KAZIMIR KOWALSKI v ANDREW SIM & ORS
[2004] SADC 6
Judge Lunn
Civil
REASONS ON THE DISMISSAL OF A PURPORTED APPEAL AGAINST A RULING MADE ON 20 OCTOBER 2003 ON A TAXATION OF COSTS.

In accordance with a judgment of this Court the defendants are proceeding to tax their costs of action recoverable from the plaintiff for which they have filed a long form bill of costs. The taxation commenced before Master Norman on 16 September 2003. It is at present only part heard.
In the course of the taxation the plaintiff objected, inter alia, to every item in the bill on the grounds that the defendants personally had not incurred any liability for legal costs because these had been met by their insurer. The Master heard submissions on the point and reserved his ruling. On 20 October 2003 he published reasons for his ruling. The Record of the Court states:
“I reject the plaintiff’s contention that the defendants’ have no recourse against him for their costs. The taxation will proceed on 19 January 2004 and 28 January 2004 as previously ordered.”
The Master published reasons for the ruling. The reasons are headed “Reasons for Decision”. In retrospect it would have been better if that term “decision” had not been used.
On 1 November 2003 the plaintiff filed a notice of appeal against what was stated to be the “judgment delivered by Master Norman posted to parties on 20 October 2003”. He sought to challenge the Master’s conclusion that costs were recoverable even though the defendants were insured. There is no suggestion that the Master has taxed any of the items in the bill and allowed them on the basis of this conclusion.
The appeal came on for hearing before me on 14 January 2004. Initially I raised points about whether there could be any appeal but the plaintiff, who represented himself, had no understanding of the legal issues involved in this. I dismissed the appeal on the basis that there was no appealable judgment on which the notice of appeal could operate. I reserved the right to publish these reasons setting out why I had reached that conclusion.
Although the plaintiff would not acknowledge it, clearly the Master’s ruling of 20 October 2003 was made in the course of his conduct of the taxation of costs. His only jurisdiction to make the ruling was as a Master conducting the taxation of costs. It is a part of the function of a taxing officer to determine whether a party claiming costs has a liability for those costs because, if not, the item must be disallowed on the taxation: Rigney v Prestwood (1985) 122 LSJS 224.
Special rules govern how a party dissatisfied with a taxation of costs by a Master can challenge the taxation before a Judge of the Court. The relevant Rules are as follows:
“101.19(1) Where a party is dissatisfied with the decision of a taxing officer as to all or some of the items of the bill of costs he may, before the certificate of taxation or allocatur is signed, or at such other time as may be fixed by the Master:
(a)     deliver specific objections to the Master;
(b)     deliver to the other party interested in the allowance or disallowance a copy of such objections;
(c)     thereupon apply to the Master to reconsider the taxation in respect of those items or parts.
……
(2) Upon the receipt of any written objection pursuant to sub-rule (1) above, a Master may, if he thinks fit, by notice sent to all other interested parties direct that they deliver answers in writing to objections, or such of them as are specified by the Master, within a stipulated time before the date set for the hearing of the objections.
……
101.20 Where an application is made pursuant to Rule 101.19 to reconsider the taxation, the Master:
(a)     shall reconsider the taxation in relation to the objections and he may, if he thinks fit, receive further evidence in respect of the objections;
(b)     shall publish the grounds and reasons for his decision on the objection incorporating therein any special facts and circumstances relating to his decision, and thereafter the final allocatur for the taxation may be issued by the Registry;
……
101.21(1) A party dissatisfied with the certificate or allocatur made after reconsideration pursuant to the preceding two Rules may within fourteen days from the date of the certificate or allocatur, apply to a Judge in Chambers for an order to review the taxation as to the item or part of an item, the subject of dissatisfaction.
(2) The application shall be heard and determined by a Judge upon the evidence which has been brought in before the Master, and further evidence shall not be received upon the hearing of the application unless the Judge so orders.
(3) The certificate or allocatur of the taxing officer is final an conclusive as to all matters which have not been objected to in accordance with these Rules.
……”
In relation to taxations of costs these rules impliedly exclude the operation of the other Rules of Court which deal generally with appeals against Masters. Thus in seeking to challenge a Master’s taxation of costs a dissatisfied party is confined to the procedures laid down by Rule 101. It should be noted that Rule 101.21(1) provides a right of review, and not of appeal, but for the purposes of what I have to determine here there is no material difference between a review and an appeal.
Rule 101.19 makes the completion of the reconsideration procedures a condition precedent under Rule 101.21(1) to the dissatisfied party having a right to have the taxation reviewed. Here there has been no reconsideration under Rules 101.19 and 101.20. Indeed there could not have been a reconsideration. Rule 101.19(1) requires that a Master should first have made a decision about some item in the bill. Here the Master has not made a decision about an item in the bill, in the sense of allowing it or disallowing it, but has only made a ruling on a point which affects how he might ultimately tax particular items.
There is precedent for Masters conducting taxations to dispense with the reconsideration procedure where it would serve no useful purpose. (See Civil Procedure SA, para [R101.19.10].) Here no such application was made to the Master. In considering any such application the Master would have to have regard to whether it was appropriate to deal with a reconsideration before the taxation was completed so that, if appropriate, all matters to be dealt with in a reconsideration could be attended to at the one time. There is a procedure laid down in Re Donaldson (1884) 27 Ch D 544 whereby a point of principle can be tested before a Judge at the outset of a taxation of costs but the necessary steps for that have not as yet been employed here by the plaintiff.
As a reconsideration, which is the condition precedent for any review or appeal, has not been carried out, the plaintiff is disentitled to pursue any appeal or review at this stage and it makes the present appeal incompetent. It does not mean that the point in issue cannot be pursued later at the appropriate time.
The plaintiff’s attempt to appeal the ruling in question here is an inappropriate fragmentation of the taxation process. Ordinarily such fragmentation should not be permitted. However, in special circumstances where the interests of justice require it, it may be allowed by the direction of the Court. As to the general principles relating to fragmentation of the judicial process see Advertiser Newspapers Ltd v Despoja (below) at 75. The Master conducting the taxation can prevent inappropriate fragmentation of the taxation by attempted interim appeals through the reconsideration process under Rule 101.19. The Master has a discretion to defer any reconsideration sought until the completion of the taxation, or until some other appropriate time before the completion of the taxation. Usually a reconsideration would only be dealt with after all of the items have been taxed so that judicial resources are not wasted by having multiple reconsiderations. As a completed reconsideration is a condition precedent to a review under Rule 101.21 any attempted review or appeal brought without a reconsideration being completed or dispensed with can be struck out summarily. In this way the Master can control the orderly and expeditious conduct of the taxation without being impeded by unwarranted interim reviews or appeals.
In addition, the purported appeal is also incompetent for the following reasons. Section 43(1) of the District Court Act provides:
“(1) A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2) The appeal lies –
(a) in the case of a judgment given by a Master or the Court constituted of a Master – to the Court constituted of a Judge;
……”
The jurisdiction for any appeal comes from these statutory provisions. For present purposes I assume, without deciding, that the right to a review under Rule 101.21 is a right of appeal in accordance with the Rules of the Court under s43(1). “Judgment” for the purposes of s43 is defined in s3(1) of the Act as follows:
“’judgment’ means a judgment, order or decision and includes an interlocutory judgment or order;”
I am satisfied that the ruling of Master Norman in question in this purported appeal is not a “judgment, order or decision” within that definition, and thus cannot be subject to appeal under s43.
Clearly that ruling is not a “judgment” or an “order” for the purposes of the definition. It is more problematic whether it is a “decision”. The authorities are clear that not every ruling which is described as a “decision” is a decision for the purposes of the definition of “judgment” and thus is subject to appeal under s43: Harrington v Harrington (1979) 22 SASR 449 at 450-1; Workers Rehabilitation and Compensation Corporation v Thuy Thi Vu (1988) 49 SASR 585; Advertiser Newspapers Ltd v Despoja (1990) 159 LSJS 75. While it is possible for a decision which does not make a final determination of rights to be a “decision” which is subject to appeal (Workers Rehabilitation and Compensation Corporation v Thuy Thi Vu, above), it is also clear on these authorities that not every ruling which might otherwise be described as a decision is a “decision” which is subject to appeal. It depends upon the nature of the determination in question in the context of the overall proceedings.
There is copious authority that there should not be appeals against the reasoning and the intermediate steps which lead to a judgment, but only against the judgment itself: Chapman v Chapman [1946] SASR 217 at 218; Ah Toy v Registrar of Companies (1985) 61 ALR 583; Landsal Pty Ltd v REI Building Society (1993) 113 ALR 643. There are many rulings, to use a broad and neutral term, which are made in the course of a hearing, which might colloquially be described as “decisions”, which are not in themselves “judgments” as defined in s3 and so cannot be the subject of any appeal in their own right. They include rulings on the basis of jurisdiction, the admissibility of evidence, the competence of witnesses, the applicability of statutory restrictions and many others. They are intermediate and necessary steps to the Court determining the rights of the parties. However, they usually only become the subject of appeal in the context of appeals against judgments in the wider sense of the term, which determine the rights of the parties. Similar considerations apply in the context of a taxation of costs where many intermediate rulings may be made by the Master before the taxation is completed. Even apart from the requirements of Rules 101.19-101.21, there is nothing which has occurred here which could be properly categorised as a “decision” which could be subject to an appeal.

[2004] SADC 6

21 January 2004