Kowalski v Lieschke & Weatherill Lawyers

[2015] SASCFC 108

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

KOWALSKI v LIESCHKE & WEATHERILL LAWYERS

[2015] SASCFC 108

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kelly)

7 August 2015

PROCEDURE - COSTS - TAXATION - REVIEW

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

PROCEDURE - COSTS - APPEALS AS TO COSTS

Application for permission to appeal from an order of a Judge of this Court dismissing an appeal from a Master.  In November 1995, the appellant engaged the respondent, a law firm, to act on his behalf in relation to a workers' compensation matter.  The appellant was declared a vexatious litigant on 20 January 2014.  The appellant was subsequently granted permission to file an application for the fixing of the legal costs in respect of the bills rendered by the respondent on 15 November 1995 and 5 March 1996, totalling $3,536.16.  A Master of this Court made a provisional order for taxation in the amount of $2,000.00.  The Master confirmed this order upon review.  A Judge of this Court held that there was no evidence the Master erred or acted on incorrect principle, and that there was no basis to interfere with the exercise of the Master's discretion.  On 2 June 2015, the appellant was granted permission to seek permission from the Full Court to appeal against the decision of the Judge.  By his Notice of Appeal, the appellant seeks to appeal as of right, and in the alternative, seeks a grant of permission to appeal.

Held per the Court:

1.  The proposed appeal is limited to the question of costs and therefore the appellant must obtain permission to appeal pursuant to rule 288(1)(b) of the Supreme Court Civil Rules 2006 (SA).

2.  There is no point of legal principle or of public interest to warrant a grant of permission.  There is no risk of there having been a miscarriage of justice.

3.  Permission to appeal refused.

Supreme Court Civil Rules 2006 (SA) r 276, r 288(1)(b), referred to.

KOWALSKI v LIESCHKE & WEATHERILL LAWYERS
[2015] SASCFC 108

Full Court: Gray, Vanstone and Kelly JJ

THE COURT.

1. This is an application for permission to appeal from an order of a Judge of this Court dismissing an appeal from a Master.  Kazimir Kowalski, the applicant, also asserts that he has an appeal as of right.  This assertion is misconceived. 

2. Following an incident in 1991, Mr Kowalski claimed workers’ compensation for emotional distress.  A WorkCover review officer initially rejected the claim.  Mr Kowalski successfully appealed against this rejection and obtained an order from the Workers Compensation Appeal Tribunal remitting the matter for hearing before a different review officer.  The employer, Mitsubishi Motors Australia Ltd, appealed to the Full Court of the Supreme Court and, on 6 February 1996, the appeal was allowed. 

3. Lieschke & Weatherill Lawyers commenced acting for Mr Kowalski on 9 November 1995.  Mr Kowalski paid $2,000.00 into that firm’s trust account as security for their costs.  Lieschke & Weatherill acted for Mr Kowalski in the appeal and a member of the firm appeared as counsel on the appeal on his behalf.  Following the hearing, Lieschke & Weatherill rendered Mr Kowalski a bill dated 15 November 1995 for $3,120.00 and transferred the $2,000.00 held in trust in part payment of that account.   It would appear that Lieschke & Weatherill rendered a further bill dated 5 March 1996 in respect of an amount of $416.16. 

4. On 20 January 2014, Mr Kowalski was declared a vexatious litigant by Blue J.  On 21 May 2014, Blue J granted Mr Kowalski permission to file an application for the fixing of the legal costs in respect of the bills rendered by Lieschke & Weatherill on 15 November 1995 and 5 March 1996, totalling in all $3,536.16. 

5. Mr Kowalski’s application for fixing legal costs included the following assertion; “[t]he person liable to pay the costs has already paid the Respondent legal costs in the sum of $2,000.00, however, the Applicant does not accept that the Respondent’s legal costs are fair and reasonable.” 

6. The application was heard by a Master of the Court.  In the course of his reasons, the Master noted that the solicitor’s file had been destroyed in 2006 and, as a consequence, it was not possible to conduct a taxation of costs in the usual manner.  In accordance with rule 276 of the Supreme Court Civil Rules 2006 (SA), the Master initially made a provisional order, and in that respect, the Master observed:

   As can be seen from Rule 274(2)(b)(i) the Court may decide questions on an adjudication by estimation or in any other way that may be expedient in the circumstances.  Given that the file has been destroyed, it was necessary to proceed by way of estimation.

   The respondent was content on the taxation for the costs to be fixed in the sum of $2000.  The respondent sent two bills in relation to the Full Court appeal.  The bills were detailed and calculated on the then applicable Supreme Court Scale.  I am satisfied, having regard to that fact, and also to the fact that this is a taxation on a solicitor and own client basis, that, if it had been possible to conduct a full taxation of the bill, the amount taxed would have been closer to the amount charged rather than to the sum of $2000.  In the circumstances, the bill was taxed in the amount of $2000.  After a bill is taxed, the order of the Court is a provisional order until the period for review has expired.

7. Mr Kowalski sought a review of this provisional order.  On 1 December 2014, the Master concluded that each of the grounds of review advanced by Mr Kowalski failed and he confirmed his original view on the taxation, that the bill be taxed at the sum of $2,000.00. 

8. On 6 January 2015, Mr Kowalski was granted permission by Blue J to seek a further review by a Judge of this Court.  That review proceeded before Bampton J, who on 19 May 2015, concluded:

   Upon a further review pursuant to rule 278(6) the Court will not interfere with the taxation unless it is shown that the taxing Master has made a gross mistake.  There is no evidence the Master has acted on any incorrect principle or erred. Mr Kowalski instructed the respondent to act for him in respect of the Full Court appeal. As such the respondent was entitled to charge Mr Kowalski in accordance with the costs set out in the Fourth Schedule of the Supreme Court Civil Rules 1987 being the scale of costs for work performed in the jurisdiction of the Supreme Court.

   The Master correctly determined that as there was no written agreement between Mr Kowalski and the respondent, and Mr Kowalski was charged on the basis of the Supreme Court scale applicable at the time, there was no work for s 42(7) of the [Legal Practitioners Act 1981 (SA)] to do. The Court’s power prescribed by s 42(7) only applies to agreements in writing referred to in s 42(6). As the respondent’s file was no longer available it was appropriate the Master conduct the taxation in the manner provided for by rule 274(2)(b)(i). The Master did not err in the exercise of his discretion in finding that if it had been possible to conduct a full taxation on a solicitor and client basis that the amount taxed would have been closer to the amount charged of $3,536.16 rather than the amount of $2,000.

   There is no basis to interfere with the exercise of the Master’s discretion.

9. On 2 June 2015, Blue J granted Mr Kowalski permission to file a Notice of Appeal seeking permission from the Full Court, to the extent permission was necessary, to appeal against the decision of Bampton J.  Pursuant to that grant, Mr Kowalski has sought permission to appeal from the Full Court.  At the same time he has purported to appeal as of right.  Blue J did not grant Mr Kowalski permission to appeal to the Full Court.  His Honour expressly limited the application for permission to the Full Court in accordance with the Court’s usual practice when dealing with appeals limited to a question about costs. 

10. Section 50(4) of the Supreme Court Act 1935 (SA) relevantly provides, “An appeal lies only with the permission of the court— (b) if the rules provide that the appeal lies by permission of the court.” Rule 288(1) of the Supreme Court Civil Rules relevantly provides, “Subject to any statutory provision to the contrary, an appeal to the Court lies by permission of the Court if — ... (b) the appeal is limited to a question about costs.”  As a consequence, Mr Kowalski requires permission to appeal from the order of Bampton J.  His proposed appeal is limited to a question about costs. 

11. The practice of the Court is to determine applications for permission on the papers.  In accordance with the direction of Blue J and with the practice of the Court, Mr Kowalski has submitted written submissions in support of his application for permission.  In his written submissions, Mr Kowalski complains that Bampton J failed to conduct a proper review of the Master’s estimation of the costs.  It was contended, in particular, that Bampton J erred in conducting the review as though it were an appeal.  The core of Mr Kowalski’s complaint appears to be that Lieschke & Weatherill were not entitled to claim their costs as there was no written retainer agreement.  Mr Kowalski further contends that the claim for costs was unreasonable.  Finally, Mr Kowalski asserts that the Lieschke & Weatherill file was not destroyed and is in his possession.   The file has not been produced.   A review of the papers reveals that the appeal file has most probably been destroyed and that all that remains is part of a file opened in respect of the fee dispute.

12. Our review of the papers, including the case book and Mr Kowalski’s written submissions, does not disclose any arguable case of error on the part of Bampton J.  We do not consider that there is any point of legal principle or of public interest to warrant a grant of permission.  We do not consider that there is any risk of there having been a miscarriage of justice. 

13. We refuse permission to appeal.