Kowalski v R J Cole & Partners - [2015] SASCFC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KOWALSKI v RJ COLE & PARTNERS
[2015] SASCFC 35
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Bampton)
2 April 2015
PROCEDURE - COSTS - TAXATION - PROCEDURE
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - VEXATIOUS LITIGANTS AND PROCEEDINGS
Appeal against a decision of a Judge dismissing an appeal from a Master’s decision to stay an application to tax a bill of costs as an abuse of process. The respondent acted for the appellant between 1989 and 1994 in respect of a claim arising out of injuries sustained by the appellant at work. The appellant sued the respondent for negligence in respect of the respondent’s dealing with monies paid into its trust account. The appellant was unsuccessful. The respondent applied to have its bill of costs taxed. In 2005, the appellant succeeded in having the application struck out for want of prosecution. In 2007, the appellant applied to have the respondent repay monies taken from his trust account on account of its fees. The application was dismissed as no taxation of costs had taken place. Later in 2007, the appellant sought to set aside the order he obtained striking out the application for taxation of the respondent’s bill of costs. The application was unsuccessful. In 2013, the appellant made further application to tax the respondent’s bill of costs. The application was stayed by a Master as an abuse of process on the basis that the appellant was attempting to use the taxation process to advance an argument that he had no obligation to pay fees to the respondent.
Whether the proceeding is an abuse of process.
Held per Gray and Sulan JJ (dismissing the appeal):
1. Section 42 of the Legal Practitioners Act may only be invoked by a person who is liable to pay legal costs. The question of liability to pay legal costs is to be addressed by the court in which the proceedings against the solicitors have been brought.
2. The appellant does not accept that he is liable to pay any legal costs. He is seeking to use an application under section 42 of the Legal Practitioners Act to advance an argument that he is not liable to pay legal costs, rather than dispute the quantum of costs.
3. The proceeding is an abuse of process.
4. The Master’s order was an order in the nature of an injunction. Accordingly, the appellant’s appeal was an appeal as of right and permission to appeal was not required.
Per Bampton J (refusing permission to appeal):
Application seeking to appeal a judgment given on appeal from an interlocutory judgment of a Master staying an application for taxation as an abuse of process – appeal only lies with the permission of the Court – appeal argued before the Full Court without the Court first considering pursuant to SCR 290 whether permission to appeal should be granted.
1. Extension of time within which to seek permission to appeal should be granted.
2. Permission to appeal should be refused.
Legal Practitioners Act 1981 (SA) s 41 and s 42; Supreme Court Act 1935 (SA) s 39 and s 50; Supreme Court (Civil) Rules 2006 (SA) r 280, r 288, r 290 and r 295, referred to.
Attorney-General v Kowalski [2014] SASC 1; Bienstein v Bienstein (2003) 195 ALR 225; Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408; Kowalski v R J Cole & Partners [2014] SASC 137; King William Law Chambers v Mobitel (International) Pty Ltd (1981) 29 SASR 316; Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118; Von Doussas Legal Pty Ltd v Nasr [2008] SASC 206; Rouse & Ors v IOOF Australia Trustees Limited (No 2) [1999] SASC 205; Packer v Meagher [1984] 3 NSWLR 486; Port of Melbourne Authority v Anshun Proprietary Limited (1980) 147 CLR 35; In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70; Kermani v Westpac Banking Corporation (2012) 36 VR 130; Manos & Ors v Maras & Ors [2007] SASC 192, considered.

KOWALSKI v RJ COLE & PARTNERS
[2015] SASCFC 35
Full Court: Gray, Sulan and Bampton JJ
GRAY AND SULAN JJ.

This is an appeal from an order of a Judge of this Court dismissing an appeal from a Master.
Background
On 13 June 2013, Kazimir Kowalski, the appellant, made application for the fixing of legal costs against a law practice, R J Cole & Partners, the respondent. The application was made pursuant to section 42(1) of the Legal Practitioners Act 1981 (SA). It purported to seek an adjudication of a bill of costs of R J Cole & Partners for taxation between solicitor and client pursuant to section 41 of the Act. Annexed to the application was a bill of costs lodged for taxation in 1995.
The application, inter alia, asserted:
The respondent has not entered into a retainer agreement with the applicant, therefore, the applicant has no liability whatsoever to pay the respondent any legal costs or disbursements whatsoever. (See Cachia v Isaacs & Ors. (1985) 3 NSWLR 366).
The respondent improperly commenced District Court Action No. 2760 of 1990, on behalf of the applicant, in the civil jurisdiction of the District Court instead of in the criminal jurisdiction of the Industrial Court of South Australia, therefore, pursuant to rule 101.05 of the Supreme Court Rules, the applicant does not have any liability whatsoever to pay the respondent any cost that have arisen from the respondent’s act or omissions. (See Cachia v Isaacs & Ors. (1985) 3 NSWLR 366).
The applicant does not have any liability whatsoever to pay the respondent any costs or disbursements for the preparation of the Bill of Costs in Taxable Form. (See National Bank of Wales [1092] 2 Ch 412; Re McCook (1887) 3 WN (NSW) 86).
The respondent costs are based on a time costs basis, however, the respondent has not entered into a written costs agreement with the applicant, therefore, the applicant has no liability whatsoever to pay the respondent any costs or disbursements whatsoever.
During District Court action No. 2760 of 1990, there was an unexplained and a blatant disregard for the requirements of the rules of the District Court, by the respondent, its servants and its agent, therefore, the applicant does not have any liability whatsoever to pay the respondent any legal costs or disbursements. (See Trnka v Commonwealth (SC(SA), Legoe J, 28-11-1986, Unreported.)
The respondent has grossly overcharged the applicant, which is professional misconduct, therefore, as an alternative to the taxation of the respondent’s Bill of Costs, the Supreme Court must make an order that the respondent makes a full refund of the legal costs and disbursements that the applicant has unconscionably paid to the respondent and which respondent has fraudulently and unconscionably obtained from the applicant. (See Harrison v TEW [1990] 1 ALL ER 321.)
[Emphasis added.]
The application came on for hearing before Judge Dart, a Master of the Court, on 4 February 2014. Judge Dart accepted a submission of R J Cole & Partners that the application should be dismissed as an abuse of process. We draw on the history of the proceedings as set out in Judge Dart’s reasons.
The costs in dispute were incurred between 1989 and 1994. At that time, R J Cole & Partners acted for Mr Kowalski in respect of a claim arising from work injuries sustained by Mr Kowalski while he was employed by Mitsubishi Motors Australia Ltd.
This was the second application to tax the costs. The first was made by R J Cole & Partners in July 1996. That application progressed very slowly. The reason was that, at about the same time as the application to tax the costs was lodged, Mr Kowalski instituted proceedings in the District Court suing for alleged negligence. On 10 October 1996, a Master adjourned the application sine die and it does not appear to have come before the Court again until 14 April 2004.
The District Court proceedings were dismissed in 2002. It appears that R J Cole & Partners thereafter did not progress the taxation with any vigour. The Master considered that this may have been because, by that time, Mr Kowalski’s claim against Mitsubishi had resolved.
In August 1992, Mr Kowalski and Mitsubishi entered into a settlement in relation to particular injuries. Pursuant to the terms of the settlement, Mitsubishi payed the sum of $23,000.00 into R J Cole & Partners’ trust account. R J Cole & Partners took their fees from that payment. The sum withdrawn from the trust account was $18,634.66. In September 1992, WorkCover Corporation refused to consent to the terms of settlement. Mitsubishi requested that the amount of $23,000.00 be repaid.
In 1998, a further settlement was reached between Mr Kowalski and Mitsubishi in relation to his claims. It appears that, as a result of that settlement, Mitsubishi abandoned its request that the amount of $23,000.00 be repaid. The Master considered that this may have explained the solicitors’ apparent lack of interest in progressing the taxation.
On 22 July 2005, at the request of Mr Kowalski, the application to tax the bill of costs was struck out for want of prosecution. Mr Kowalski was awarded costs of $15.00.
Mr Kowalski had brought proceedings against R J Cole & Partners in the Magistrates Court and in the Federal Magistrates Court. Mr Kowalski complained about the conduct of R J Cole & Partners in dealing with the monies paid into their trust account.
In the District Court negligence proceedings, Judge Anderson held that R J Cole & Partners was entitled to take the monies from the trust account in the manner in which it did.
On 24 July 2007, Mr Kowalski made an application requesting that the Court, pursuant to section 42(3)(a) of the Legal Practitioners Act, direct the solicitors to repay the sum of $18,634.66 plus interest to Mr Kowalski. Argument was had in respect of that application on 15 October 2007. Judge Lunn, a Master of this Court, dismissed the application on the basis that jurisdiction to order a refund only arose in circumstances where there had been a taxation pursuant to section 42 of the Legal Practitioners Act.
On 28 January 2008, Mr Kowalski filed an application to set aside the order of 22 July 2005 dismissing the application for a taxation. The application purported to be made pursuant to rule 84(12) of the Supreme Court (Civil) Rules 1987, however, Judge Lunn directed that the matter proceed under the Supreme Court (Civil) Rules 2006. The Master treated it as an application under rule 242. The application to set aside was unsuccessful. Judge Lunn found there was no proper basis to set aside the order made at the request of Mr Kowalski in 2005. Judge Lunn was also critical of Mr Kowalski for bringing ill-considered and baseless applications.
On 31 March 2008, orders were made on the set-aside application as follows:
Application dismissed.
Costs of the application as agreed or adjudicated upon to be paid by the defendant to the plaintiff.
The defendant is not permitted to file any further interlocutory application in this action unless he first pays into Court $1,000 on account of the costs of the plaintiff ordered against him on 15 February 2008 and today.
The matter remained dormant for more than five years until these proceedings were commenced on 25 September 2013. Mr Kowalski has simply uplifted the bill of costs prepared by R J Cole & Partners and filed in the 1996 application.
The applicant has not paid the sum of $1,000.00 into Court as ordered by Judge Lunn. In Judge Dart’s view, as both sets of proceedings concerned the taxation of the same costs, Mr Kowalski would be required to pay the sum of $1,000.00 into Court if the taxation was to proceed.
Against this background, Judge Dart concluded that there was an abuse of process and, in that respect, reasoned as follows:
The respondent advanced a second argument for dismissal of the application as an abuse of process. Abuse of process can take many forms. One of the recognised categories of abuse of process is where proceedings are used for a purpose other than that for which the proceedings are properly designed and exist. In cases where it is said that an abuse of process arises from an improper use of proceedings, the issue becomes one of the predominant purpose of an applicant. It is not necessary for the impugned purpose to be the sole purpose.
The purpose of a taxation of the bill of costs is not to determine questions in respect of the liability to pay costs. That is assumed. The process of taxation is one of going through the items of costs claimed one-by-one and adjudicating whether, on the basis of the entitlement to costs, here a solicitor and own client entitlement, the charges are appropriate and reasonable.
As can be seen from the authorities mentioned above, it would be an abuse of process if the applicant seeks to utilise the taxation process for a purpose for which the taxation process is not designed. In my view, for the reasons that follow, the applicant is doing so.
The applicant has a genuine sense of grievance in relation to the conduct of the respondent, as he sees it. In my judgment he does not truly want a line-by-line taxation of the costs. What he wants is a vindication of his position and for what he regards as the wrongdoing of the respondent.
The issues raised by the applicant on the argument include:
He has no legal obligation to pay any costs to the respondent.
The respondent was not entitled to take their fees out of the monies paid into their trust account by Mitsubishi.
The sum of $9118 held in the trust account and referred to above was the applicant’s money and not the money of the respondents.
These issues were ventilated many times by the applicant during the course of the argument.
The argument that he has no obligation to pay any costs to the respondent arises from the applicant’s interpretation of various provisions of the Workers Rehabilitation and Compensation Act 1986. A taxation is not the appropriate forum in which to have that issue determined. The position of the applicant is that he had no obligation to pay the respondent’s costs, for the reasons just mentioned. It is inappropriate to use a taxation to advance that argument. Fundamental questions of liability, such as a liability to pay costs at all, are a trial court issue. The applicant first raised the issue at least 10 years ago, but appears to have taken no steps to resolve it.
Likewise, the issue of the respondent taking their fees from monies paid into their trust account by Mitsubishi is not a question that can be determined on a taxation. In any event, in the negligence proceedings, Judge Anderson held that the respondent was entitled to take their costs in the manner in which they did. The finding of Judge Anderson was not appealed. It is inappropriate to use a taxation to attempt to re-litigate issues relating to the handling of trust funds.
The third issue relates to the sum of $9118 repaid into the trust account by the respondent at the time Mitsubishi was asking for a refund of settlement monies. The respondent issued proceedings seeking a declaration in relation to the sum of $9118.45 paid back into their trust account. The applicant counterclaimed, saying that the monies belonged to him. A magistrate made a declaration that the sum of $9118.45 held in the respondent’s trust account was not trust monies and that the respondent was entitled to those monies. The decision of the learned magistrate was not appealed. Again, it is improper for the applicant on a taxation to attempt to re-litigate an issue that has been determined adversely to him.
In my opinion, the predominant purpose of the applicant is to use the taxation proceedings to advance arguments on the three issues mentioned above. That is an improper purpose. I propose to dismiss the application for a taxation as an abuse of process....
[Footnotes omitted.]
Mr Kowalski appealed against the Master’s orders to a Judge of this Court. On 23 September 2014, the Judge dismissed the appeal.[1] In published reasons, the Judge summarised the history of the matter and then addressed the 38 grounds of appeal in eight groups. Relevantly, group six addressed the finding of the Master of abuse of process. In particular, the Judge reasoned:
However, Judge Dart correctly found that the predominant purpose of the appellant was to deny any liability to pay any legal costs to the respondent and to seek the return of everything that he has previously paid (plus interest) on grounds of absence of liability to pay costs, absence of any retainer, fraud, theft, wrongdoing, etcetera. In such circumstances, the question of precisely how much would be owing under a bill of costs is irrelevant since he denies any liability to pay whatever the amount might be. In a word, the matter of liability rather than quantum is what the present proceedings are really all about.
Judge Dart canvassed these matters thoroughly in his reasons and particularly at paragraphs [30] to [44]. His Honour cited relevant authority to which I might add references to Hamilton v Oades; Williams v Spautz; Walton v Gardiner, Batistatos v Roads and Traffic Authority (NSW) and Moti v The Queen. I agree with his Honour’s reasoning and I agree that his Honour had more than sufficient material to come to the conclusion that he did.
I would simply add that the conclusion to which Judge Dart came as to the predominant purpose of the appellant has again been well and truly confirmed during the course of these appeal proceedings.
In ground 37 of appeal, the appellant asserted that: “[M]aster Dart could have ordered a refund of the sum of over $40,000 of the respondent has illegally stolen from the appellant.” (This is a reference to the appellant’s estimate of everything that the respondent had received as costs and disbursements.)
Prior to the hearing of the appeal, the appellant sent by facsimile transmission (fax) to Parker J (who was originally allocated to hear the appeal) a number of sets of written submissions which included repeated references to his case being that he claims a full refund of moneys appropriated for costs by the respondent (plus interest). For example, in a fax labelled by the appellant as “Faxed to Justice Parker on 28-8-14 at 6.31pm” the appellant stated at paragraph 5.1 “I did not have any liability whatsoever to pay the respondent any legal costs or disbursements on the grounds that …”. The appellant then sets out at great length at paragraph 5.1.1 to 5.1.7, and continuing at paragraph 6, the various reasons he advances, and the numerous authorities upon which he relies, to demonstrate that he had no such liability. Later the appellant stated: “I submit that Master Dart had a legal obligation, pursuant to s 42(3)(a) of the Legal Practitioners Act 1981 (SA) to “(a) order the refund of any amount overpaid” to me in the sum of about $43,000.00 plus compound interest since 31 August 1992 …”. (This is again a reference to the appellant’s estimate of everything that the respondent had received as costs and disbursements.)
The appellant again vigorously put that same position orally on the hearing of the appeal on Monday, 1 September 2014.
These grounds are rejected.
[Footnotes omitted. Emphasis added.]
[1] Kowalski v R J Cole & Partners [2014] SASC 137.
Mr Kowalski appealed to this Court complaining of the confirmation by the Judge of the Master’s orders.
The Appeal
As earlier extracted, Mr Kowalski’s application unequivocally asserts that he has never had any liability whatsoever to pay any legal costs or disbursements of R J Cole & Partners. These assertions are maintained by Mr Kowalski. In the earlier extracted material from the judgment of the Judge under appeal, the allegation that Mr Kowalski was under no liability whatsoever to pay R J Cole & Partners any legal costs or disbursements was maintained on the basis of the same submissions as advanced before this Court.

Section 42 of the Legal Practitioners Act provided:
Costs
(1)     On the application—
(a)     of a person claiming to be entitled to legal costs; or
(b)     of a person who is liable to pay, or who has paid, any legal costs,
the Supreme Court may tax and settle the bill for those costs.
(1a) The Supreme Court's power to tax and settle a bill of costs (but no other power of the Supreme Court under this section) may, subject to any rule, order or direction of the Court, be exercised by the Registrar of the Court.
(1b) Subject to the rules of the Supreme Court, an appeal lies to a judge against a decision of the Registrar pursuant to subsection (1a).
(2) Where an application has been made under subsection (1), the Supreme Court may—
(a)     restrain a person claiming to be entitled to the costs from commencing an action for recovery of the costs; or
(b)     stay any proceedings for recovery of the costs.
(3)     The Court may, on taxation of a bill of costs under this section—
(a)     order the refund of any amount overpaid; or
(b)     where the proceedings have been instituted by the person seeking recovery of the costs—order payment of legal costs in accordance with the taxed bill.
(4) The Board may institute proceedings for the taxation of legal costs under this section on behalf of a person who is liable to pay, or has paid, the legal costs and must institute such proceedings if ordered to do so by the Tribunal.
(5) Any court in which proceedings for the recovery of legal costs have been instituted may order the plaintiff to apply to have the legal costs taxed in accordance with this section, and may adjourn the proceedings until the taxation has been completed.
(6)     A legal practitioner may make an agreement in writing with a client for—
(a)     payment of a specified amount by way of legal costs (which may—but need not—consist of a daily, hourly or other time-related rate for professional work carried out by the legal practitioner on the client's behalf); or
(b)     payment of legal costs in accordance with a specified scale; or
(c)     subject to any limitations imposed by the Society's professional conduct rules or the regulations—payment of a contingency fee to be calculated on a basis set out in the agreement on fulfilment of a condition stated in the agreement.
(7) The Supreme Court may, in proceedings under this section, rescind or vary an agreement under subsection (6) if it considers that any term of the agreement is not fair and reasonable.
In King William Law Chambers v Mobitel (International) Pty Ltd,[2] this Court considered the role of the Supreme Court pursuant to section 42(1) of the Legal Practitioners Act in a dispute concerning legal fees. The role of this Court was held to be confined to the proper quantification of the fees payable for legal work. The quantification of fees payable is undertaken on the premise that the solicitor has been retained to perform the work. The question of liability is to be addressed by the court in which the proceeding has been brought.
[2] King William Law Chambers v Mobitel (International) Pty Ltd (1981) 29 SASR 316.
In Kedem v Johnson Lawyers Legal Practice Pty Ltd,[3] Kourakis CJ confirmed the applicability of the decision of King William Law Chambers[4] to the proceedings before his Honour:[5]
During the course of the hearing of the appeal, I was inclined to take the view that the hearing before Judge Lunn was limited to the question of the reasonableness of the fees charged on the premise that Mr Kedem had retained Johnson Lawyers, and that the fee waiver and payment issues had to be determined in the District Court. It remains my view that consistently with the decision in [King William Law Chambers] the proceedings in the Supreme Court did not extend to the issue of liability. However, I have reached the view that the jurisdiction conferred by s 42 of the LPA does extend to disputes over payments made on an account of fees and fee waivers. Fee waivers are a particular species of agreements as to the basis on which fees will be charged. Agreements as to the charging of fees may specify an hourly rate, an event-based charge and/or specify certain work for which there will be no charge. Such agreements may be retrospectively varied. Agreements of those kinds are the very subject matter of taxations. Payments on account of fees are inextricably connected to taxations.
[Footnote omitted.]
[3]    Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118.
[4]    King William Law Chambers v Mobitel (International) Pty Ltd (1981) 29 SASR 316.
[5]    Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118, [36].
The Chief Justice, did, however, take the view that section 42 extended to disputes and payments made on account of fees and fee waivers. We do not consider there is anything in the reasons of the Chief Justice that call into doubt the orders made by the Judge under appeal.
The Court’s attention was drawn to the decision of White J in Von Doussas Legal Pty Ltd v Nasr, where the following observations were made:[6]
Counsel submitted that KWLC [King William Law Chambers v Mobitel (International) Pty Ltd] is authority for the proposition that all issues arising in an action to recover costs, when the costs do not relate to an action in the same court, are (apart from any issue as to the existence of a retainer) in the exclusive jurisdiction of the Supreme Court.
In my opinion, this submission should be rejected. It fails to give full effect to the reasons of King CJ and to s 42(1) of the LPA. The distinction drawn in KWLC was not between the existence of a retainer, on the one hand, and the reasonableness of the costs, on the other. It was instead the distinction between issues of liability and issues of quantification. King CJ referred to the English practice of a court, having determined the issue of liability, referring issues as to the reasonableness of the claimed bill to a taxing master. King CJ noted that there were difficulties applying that practice in South Australia bearing in mind the different jurisdictions of the Local Court and the Supreme Court. He suggested, however, that once the Local Court had determined that the defendant is “liable” under a contract of retainer it could adopt the procedure outlined earlier of offering the defendant an adjournment for a reasonable time to enable it to seek a taxation of costs. In the same vein, King CJ later referred to the determination by the Local Court “of the issue of liability”. As it happened in KWLC, the only issue raised as to liability was the issue of the existence of the retainer. That explains the focus in the reasons of King CJ on that issue. I do not see, however, any indication in those reasons that the issues of liability to which King CJ referred were confined to issues about the existence of a retainer.
Section 42(1)(b) of the LPA grants a power to this Court to tax and settle a bill of costs on the application of, amongst others, a person who is liable to pay legal costs. If such a person does not admit the liability to pay the costs, s 42(1) cannot be invoked. In that case, all issues arising in the dispute about liability will have to be determined by other means. Section 42(1)(a) does contemplate an application by a person claiming to be entitled to legal costs, and s 42(1)(b) permits an application by a person who has already paid legal costs. On application from those persons, this Court may have to determine issues of liability. The language of s 42(1) does not suggest however that the power to determine disputes in these circumstances is exclusive of the jurisdiction of other courts. Further, s 41(1) specifically contemplates that a practitioner may bring an independent action for the recovery of legal costs. It does not specify that such an independent action may be brought only in the Supreme Court. In my opinion, the terms of s 41(1) are inconsistent with this Court having an exclusive jurisdiction to determine disputes about the liability for costs.
[Footnotes omitted.]
[6] Von Doussas Legal Pty Ltd v Nasr [2008] SASC 206, [17]-[19].
There is no suggestion in the observations of White J that the decision of King William Law Chambers is no longer good law.[7] His Honour’s comments were directed to whether the Supreme Court had an exclusive jurisdiction to determine disputes concerning the liability for costs.
[7] King William Law Chambers v Mobitel (International) Pty Ltd (1981) 29 SASR 316.
In Packer v Meagher, Hunt J reviewed the authorities on the doctrine of abuse of process and said:[8]
The legal process of a court is being abused when it is being used to exert pressure to effect an object not within the scope of the process: Grainger v Hill (1838) 4 Bing (NC) 212 at 221; 132 ER 769 at 773; or where it is used for a purpose other than that for which the proceedings are properly designed and exist: Re Majory [1955] Ch 600 at 623; or where the plaintiff in those proceedings is seeking some collateral advantage beyond what the law offers: Castanho's case (at 567). See also Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91; Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 489, 490, 503; [1977] 2 All ER 566 at 574, 585.
[8] Packer v Meagher [1984] 3 NSWLR 486, 492.
As the Master observed, Mr Kowalski is a person who has paid legal costs and, accordingly, has standing to seek a taxation of legal costs. As the Master further observed, there is no time limit specified, however, the doctrine of laches may have some relevance.
As earlier noted, an application was made by R J Cole & Partners to tax their costs in 1996. This application was not progressed and, on 22 July 2005, Mr Kowalski succeeded in having the application struck out for want of prosecution. On 28 January 2008, Mr Kowalski sought to set aside the order of 22 July 2005. Judge Lunn, a Master of the Court, dismissed the application, finding that there was no proper basis to set aside the order. More than five years later, the present application was issued. We see no reason to doubt the correctness of the decision of the Judge of this Court under appeal. More particularly, we see no reason to doubt the correctness of the decision of the Master in concluding that the proceeding was an abuse of process. We go further, and express our concurrence with the reasons of the Master.
Mr Kowalski seeks to use his application purportedly to tax a bill of costs to argue that there was no retainer and that he had no liability whatsoever to pay any legal costs or disbursements to R J Cole & Partners. We agree with the Master that Mr Kowalski is seeking to use the taxation process for a purpose for which that process is not designed.
Whether Permission to Appeal is required
Since preparing these reasons we have had the advantage of perusing the draft reasons of Bampton J. It is appropriate that we make the following observations. The proceeding before Peek J was argued as an appeal as of right. During the hearing before this Court, the matter proceeded as an appeal. The question of permission was not raised by either party or the Court.
A review of the file indicates that, on the Master’s delivery of reasons, he made an order dismissing the application. On 12 June 2014, the matter was called on before the Master to finalise the issues in relation to his reasons delivered on 29 May 2014. Mr Kowalski did not attend and the matter proceeded ex parte. The following interchange occurred between the Master and counsel for R J Cole & Partners:
His Honour:                On further consideration, I think the order I made, order 3, which was dismissing this application for taxation, may not be the correct order. I think the correct order, when there’s an abuse of process, is not to dismiss but to stay –
Mr Thomas:        Strike it out.
His Honour:        ‑ as an abuse of process. So I think I’ll correct that order ‑
Mr Thomas:        Yes.
His Honour:        ‑ but otherwise the other orders can remain as they are.
Mr Thomas:         Yes.
...
His Honour:        ... So the orders I’ll make be that
1.Order No. 3 made on 29 May 2014 is varied to the intent that the application for taxation is stayed as an abuse of process.
2....
The record of outcome placed on the Court file by the Master following that hearing records an order in the terms extracted above. The order has not been drawn up or sealed.
Section 50 of the Supreme Court Act 1935 (SA) addresses rights of appeal and provides as follows:
(1) Subject to this section—
(a)     an appeal lies to the Full Court against a judgment of the court constituted of a single judge; and
(b)     an appeal lies against a judgment of the court constituted of a master.
(2) An appeal against a judgment of a master lies, if the rules so provide, to the Full Court and otherwise to the court constituted of a single judge.
(3) No appeal lies against—
(a)     an order allowing an extension of time to appeal from a judgment; or
(b)     an order giving unconditional permission to defend an action; or
(c)     a judgment that is, by statute, under the rules, or by agreement of the parties, final and without appeal.
(4) An appeal lies only with the permission of the court—
(a)     from a judgment of any of the following classes:
(i)     a judgment given by consent of the parties;
(ii) a judgment given by a single judge on appeal from a judgment of the Magistrates Court; or
(b)     if the rules provide that the appeal lies by permission of the court.
(5) The rules cannot, however, require the court's permission for an appeal if the judgment under appeal—
(a)     denies, or imposes conditions on, a right to defend an action; or
(b)     deals with the liberty of the subject or the custody of an infant; or
(c)     grants or refuses relief in the nature of an injunction or the appointment of a receiver; or
(d)     is a declaration of liability or a final assessment of damages under section 30B; or
(e)     makes a final determination of a substantive right.
Exception—
If a judgment is given by a single judge on appeal from some other court or tribunal, the rules may require the court's permission for a further appeal to the Full Court even though the judgment makes a final determination of a substantive right.
(6)     In this section—
judgment includes—
(a)     an order or direction; and
(b)     a decision not to make an order or direction.
[Emphasis added.]
Rule 288 of the Supreme Court (Civil) Rules 2006 relevantly provides:
(1) Subject to any statutory provision to the contrary, an appeal to the Court lies by permission of the Court if—
(a)     the judgment subject to the appeal is—
(i)     an interlocutory judgment of the Court given by a Judge; or
(ii)      a judgment given on appeal from an interlocutory judgment; or
...
In our view, the original order of the Master dismissing the application was a final order. However, that order was withdrawn and replaced by an order staying the proceedings as an abuse of the processes of the Court.
In Port of Melbourne Authority v Anshun Proprietary Limited,[9] the High Court considered whether on order for a permanent stay of proceedings for an abuse of process was an interlocutory or final order. Gibbs J, writing for the Court, said:[10]
In support of the objection to competency before us, Mr. Griffith naturally relied upon the decision of the Privy Council in Tampion v. Anderson, where it was held that an order staying an action on the ground that it is frivolous, vexatious and an abuse of the process of the court is an interlocutory judgment. Their Lordships in the course of their reasons refer to a number of authorities, but none of those authorities was a case in which a stay had been granted on the ground that there was an estoppel of the kind which McGarvie J. found to have been raised in the present case.
If the view expressed in Licul v. Corney is correct, and the true test of finality is whether the judgment or order, as made, finally disposes of the rights of the parties, it would seem clear that the order made in the present case was a final judgment. It is not necessary to consider whether the view expressed in Tampion v. Anderson is one which is consistent with the view taken in the Australian authorities. There may well be a difference between a case in which the action is frivolous or vexatious in the ordinary sense, or in which the proceedings disclose no reasonable cause of action, and a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata, and Tampion v. Anderson has nothing to say about a case of the latter kind.
It seems to me that in the present case, as a matter of reality, the order made does finally dispose of the rights of the parties, and on that ground I would consider it to be a final order so that the objection to competency in my opinion ought to be overruled.
[9] Port of Melbourne Authority v Anshun Proprietary Limited (1980) 147 CLR 35.
[10] Port of Melbourne Authority v Anshun Proprietary Limited (1980) 147 CLR 35, 38. See also In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70; Kermani v Westpac Banking Corporation (2012) 36 VR 130, [89]-[90].
As noted earlier in these reasons, the Master initially dismissed the application. He subsequently varied his order to stay the application. A nice point might arise as to whether the stay that has been ordered is a permanent stay. In that event, it is a final order. The reasons of the Master and his comments at the subsequent hearing suggest that he intended the stay to be permanent as the application was an abuse of process – an attempt to use the taxation process to re-litigate the question of whether Mr Kowalski had any liability to R J Cole & Partners in respect of fees charged. The transcript from the hearing suggests that the Master amended his order for technical reasons, to make “the correct order”, but his intent did not change. The effect of the Master’s order is that the application cannot proceed. Mr Kowalski will not have the Court determine his claims of fraud and that he has no liability whatsoever to R J Cole & Partners. This Court will not grant any of the relief that he sought. Accordingly, to adopt the language of Gibbs J, in our view, the Master’s order “as a matter of reality” finally disposes of the rights of the parties.
In any event, even if not a final order, the stay as an abuse of process is an order in the nature of an injunction. In Rouse & Ors v IOOF Australia Trustees Limited (No 2), Lander J considered the competence of an appeal against an order for the delivering up of documents and said:[11]
[11] Rouse & Ors v IOOF Australia Trustees Limited (No 2) [1999] SASC 205, [55]-[57].
I agree with Mr Whitington that this Court does have equitable jurisdiction to prevent a party divulging confidential information which has come into that party's hands even when the divulging of that information would not involve "any tort or any breach of some express or implied contractual provision, some wider fiduciary duty or some copyright or trademark right": Deane J at 438 Moorgate Tobacco Ltd v Philip Morns (supra).
However I do not agree that the plaintiffs invoked that jurisdiction. The jurisdiction I exercised derives from the inherent jurisdiction of the Court to regulate its own affairs and to regulate the proceedings before the Court and to prevent an abuse of its processes.
There are many orders which are mandatory in nature and binding upon a party which could not be said to be injunctions. For example, orders are commonly made requiring a party to file and deliver pleadings; to make discovery; to give inspection; and to answer interrogatories. All of those orders are mandatory in nature and can be enforced in due course with sanctions. None of the orders, however, would be described as injunctions.
"All court orders forbid or command one person to whom they are directed to do something, but not all court orders are injunctions. Legal usage alone, and not logic, decides which court orders can, and which cannot accurately be described as injunctions: Meagher, Gummow and Lehane Equity Doctrines and Remedies 3rd Ed. Butterworths 1992. Para. 2101."
An order directing a party to make available a document for inspection would not be said to be an injunction. A further order requiring a party to copy a document and to provide it to the opposing party would also not be an injunction. Indeed an order requiring a party to produce a document for inspection and copying by the Court would not be an injunction [Rule 59.0]. All of those are examples of adjectival or procedural orders commonly made in proceedings for the purpose of regulating the parties conduct in the proceedings.
Orders are commonly made requiring a non-party to make discovery, produce documents for inspection and to produce documents to the Court: r60. These orders are neither final orders (Brouwer v Titan Corporation Ltd (supra)) nor injunctions as the term is commonly understood and as the term is used in s50(3)(b)(iii) of the Supreme Court Act.
Orders of that kind are not injunctions. No undertaking is given as the price of the injunction. They are not drawn up as injunctions. They do not need to be served personally to have effect: r84.04(3). They do not have included in their terms the endorsement referred to in r84.04(3A). The orders will be enforced in their terms without compliance with r84.
We agree with Lander J’s analysis of the distinction between injunctions and other orders which have the effect of requiring or forbidding conduct.

It is to be noted, however, that the wording of section 50 the Supreme Court Act considered by Lander J was different to that before this Court in a material respect. Section 50 relevantly provided that:
(3) No appeal shall lie without the leave of the judge or of the Full Court from –
...
(b) any interlocutory order of interlocutory judgment except in the following cases, namely:-
(iii)Where an injunction or the appointment of a receiver is granted or refused.
Accordingly, the question before Lander J was whether the order was “an injunction”. The section has now been amended. The question before this Court is whether the order is “in the nature of an injunction”.
In Manos & Ors v Maras & Ors,[12] the Full Court considered an appeal against orders requiring a party to obtain court approval to take certain steps toward the possible exercise of a call option to purchase land. Bleby J, writing for the Court, concluded that the orders were interlocutory in nature. He then turned to consider whether the orders were in the nature of an injunction. He described the nature of the orders in the following terms:[13]
[12] Manos & Ors v Maras & Ors [2007] SASC 192.
[13] Manos & Ors v Maras & Ors [2007] SASC 192, [31]-[33].
As previously noted, the original interlocutory application sought an order that Mr Manos perform or join in the performing of certain actions to ensure that the lessee’s call option was exercised. By acquiescing in the orders made the respondents were not seeking to have Mr Manos excluded from taking any action towards the exercise of the option. In the circumstances it was not surprising that it was Mr Maras who was authorised to give the notice and to negotiate with the lessor. If any action was to be taken, it had to be taken urgently. At the time of the hearing Mr Manos was in China. There was therefore no prejudice to Mr Manos in nominating Mr Maras to act.
Paragraphs 1 and 2 of the order of 20 April are facultative only. They are not in the form of an injunction. They do not require anyone to do anything or prevent anyone from doing anything. By implication, the first order prevents Mr Manos from countermanding any notice that Mr Maras may give, but any such countermanding, if given, would probably be ineffective anyway once a valid notice is given. The second order, by implication, prevents Mr Manos from negotiating a price on behalf of Rundle East. It does not prevent him from making known either to Mr Maras or to the lessor his view as to an appropriate price for Rundle East to pay on the exercise of the call option, nor does it prevent him from assisting Mr Maras in the negotiations.
The third order provides a significant guide as to the nature and purpose of the orders. It ensures that agreement cannot be reached as to price nor any notice of exercise of the call option given without the approval of the Court.
[Emphasis added.]
Bleby J further noted that, importantly, the purpose and intended effect of the orders was to preserve an asset the subject of dispute pending resolution of that dispute, rather than to determine the underlying dispute.[14] Bleby J concluded:[15]
[14] Manos & Ors v Maras & Ors [2007] SASC 192, [37].
[15] Manos & Ors v Maras & Ors [2007] SASC 192, [51]-[52].
The first question to be determined is whether any of the orders grants relief “in the nature of an injunction” for the purposes of s 50(5)(c) of the Supreme Court Act. The authors of “Meagher, Gummow and Lehane’s Equity Doctrines and Remedies” 4th Edition conveniently note a number of well-known descriptions of injunctive orders:
Injunctions may be described as court orders forbidding or commanding the person to whom they are addressed to do something. This the textwriters habitually say. Thus one leading authority puts it: “A writ of injunction may be described as a judicial process whereby a party was required to do a particular thing or to refrain from doing a particular thing according to the exigency of the writ”. Another has it to the same effect: “An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing”. Again, an Australian writer has echoed the conventional wisdom: “An injunction is an order of an equitable nature restraining the person to whom it is directed from performing a specified act, or, in certain exceptional cases which will be considered hereafter, requiring him to perform a specified act”.
The authors continue:
Legal usage alone, and not logic, decides which court orders can, and which cannot, accurately be described as injunctions. [Footnote omitted]
As already noted, the orders under appeal require no-one to do anything or to refrain from doing anything other than to return to the Court to obtain approval for any further step. They are not orders in the nature of an injunction.
[Footnotes omitted.]
For reasons earlier expressed, we agree with the Master and the Judge on appeal that the purpose of Mr Kowalski’s application was to deny liability for costs to R J Cole & Partners in this Court through the taxation process. The order does not satisfy the requirements of an equitable injunction contemplated by Lander J and the authors of Equity Doctrines and Remedies, however, that is not what the Supreme Court Act, in its present form, requires. The Act requires that the order be “in the nature of an injunction”. Mr Kowalski can take no further step in the application – he is restrained from engaging in his desired course of action. The order is not facultative, nor is the restraint incidental. The very purpose of the order is to prevent Mr Kowalski from proceeding with his application. Insofar that the order may not finally resolve the parties rights and liabilities, it prevents Mr Kowalski from taking the matter any further. Accordingly, the order is in the nature of an injunction. In our view, Mr Kowalski’s appeal was as of right and permission to appeal was not required.
Conclusion
We dismiss the appeal.
BAMPTON J: Mr Kowalski seeks to appeal a judgment given on appeal from an interlocutory judgment of a Master staying an application for taxation as an abuse of process.
Background
RJ Cole & Partners, the respondent, represented Mr Kowalski in his claim for workers compensation against his former employer, Mitsubishi Motors Pty Ltd (Mitsubishi), between 1989 and 1994.
In 1992, Mr Kowalski settled with Mitsubishi for the sum of $23,000 which sum was paid into the respondent’s trust account. The respondent withdrew $18,643 from its trust account on account of their fees.
The July 1996 application to tax a bill of costs
In July 1996, the respondent made application pursuant to s 42 of the Legal Practitioners Act 1981 (SA) (the Act) to tax their bill for costs incurred acting for Mr Kowalski (the July 1996 application).
The protracted history of the July 1996 application in the Master’s Court is described in detail in Judge Dart’s decision delivered on 29 May 2014. I set out a brief summary of that history.
In July 1996, Mr Kowalski brought District Court proceedings against the respondent alleging professional negligence. Judge Anderson dismissed the proceedings in 2002 finding that the respondent was entitled to take $18,643 on account of legal costs from the trust account.[16]
[16] Kowalski v Sim, Harris, Cole, Dowd & RJ Cole & Partners (Unreported, District Court of South Australia, Anderson DCJ, 31 March 2002).
Mr Kowalski also unsuccessfully brought Magistrates Court and Federal Court proceedings alleging misconduct by the respondent in its dealings with the trust account monies.
Mr Kowalski was successful on 22 July 2005 when Judge Lunn made an order in the July 1996 application striking out the application to tax the bill of costs for want of prosecution. He was awarded costs of the application in the sum of $15.
Despite the order finalising the July 1996 application, Mr Kowalski made application in July 2007 seeking an order pursuant to s 42(3)(a) of the Act that the respondent repay the sum of $18,643 plus interest to him. The application was dismissed as the Court had no jurisdiction to order a refund in circumstances where the bill of costs had not been taxed pursuant to s 42 of the Act.
Six months later Mr Kowalski made application to set aside the orders made in his favour striking out the July 1996 application.
On 31 March 2008 Judge Lunn dismissed the application and ordered that Mr Kowalski pay the respondent’s costs. Of particular significance is Judge Lunn’s final order restraining Mr Kowalski from filing any further interlocutory application unless he paid the sum of $1,000 into Court on account of the respondent’s costs on 15 February 2008 and 31 March 2008.
It should also be kept in mind that, in 2012, Mr Kowalski unsuccessfully attempted to appeal the dismissal by a Magistrate of an Information he had laid privately pursuant to s 181(2)(b) of the Summary Procedure Act 1921 (SA).[17] In those proceedings, Mr Kowalski alleged that the respondent committed offences by unlawfully withdrawing the money from its trust account and unlawfully demanding further money from him. In effect, Mr Kowalski’s submission before the Magistrate, and reiterated before Kelly J on appeal, was that the conduct the subject of the Magistrate’s Court Information only constituted criminal conduct for the purposes of the Criminal Law Consolidation Act 1935 (SA) when Judge Lunn on 22 July 2005 struck out the July 1996 application. As noted above, the July 1996 application was struck out at Mr Kowalski’s request.
[17] Kowalski v Cole & Ors [2012] SASC 30.
The September 2013 application to tax a bill of costs
Despite Judge Lunn’s final order on 31 March 2008, and in an apparent attempt to evade the order, on 25 September 2013 Mr Kowalski made an application pursuant to s 42 of the Act (the September 2013 application) to tax the bill of costs that was the subject of the July 1996 application.
On 29 September 2013 the respondent made application seeking to strike out the application.
Attorney-General v Kowalski
On 20 January 2014, on the application of the Attorney-General, Mr Kowalski was declared a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935 (SA) (the Supreme Court Act).[18] The order made by Blue J on 20 January 2014 excluded the “Application in the Supreme Court action 1283 of 2013 before Judge Dart” (the September 2013 application) from the declaration.
[18] Attorney-General vKowalski [2014] SASC 1 (Blue J).
On 29 May 2014, Judge Dart delivered his reasons for dismissing the September 2013 application as an abuse of process. Judge Dart concluded that the predominant purpose of Mr Kowalski was to use the taxation proceedings to advance arguments that:
·he has no legal obligation to pay costs;
·the respondent was not entitled to take their fees from the trust account; and
·the sum of $9,118 held in the trust account was his money and not that of the respondent.
On 12 June 2014 Judge Dart varied his order dismissing the application to an order staying it as an abuse of process.
On 12 June 2014, Blue J gave permission pursuant to s 39 of the Supreme Court Act to Mr Kowalski to further the September 2013 application by filing an application to appeal against Judge Dart’s judgment.
The appeal against Judge Dart’s judgment was heard by Peek J who dismissed the appeal on 23 September 2014.
On 22 October 2014, Blue J granted permission to Mr Kowalski pursuant to s 39 of the Supreme Court Act to further the September 2013 application by seeking to appeal Peek J’s decision to the Full Court. It is apparent from the transcript of the hearing on 22 October 2014 that Blue J informed Mr Kowalski that he would need to apply for an extension of time to file his notice of appeal and that he may need to seek permission to appeal.
It is my view that Peek J’s judgment is a judgment given on appeal from an interlocutory judgment pursuant to SCR 288(1)(a)(ii). As such s 50(4)(b) of the Supreme Court Act prescribes that an appeal only lies with the permission of the court. Judge Dart’s interlocutory judgment does not finally determine the ultimate question between the parties.[19] As the High Court stated in Bienstein v Bienstein:[20]
The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties[21]. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them[22]. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success[23].
(Footnotes in original)
[19] See Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408.
[20] (2003) 195 ALR 225.
[21] Licul v Corney (1976) 180 CLR 213 at 225 per Gibbs J (referring to Hall v Nominal Defendant (1966) 117 CLR 423).
[22] Hall v Nominal Defendant (1966) 117 CLR 423 at 443 per Windeyer J.
[23] Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 248, 256; Hall v Nominal Defendant (1966) 117 CLR 423 at 441.
The ultimate issue between the parties regarding liability to pay, and quantum of, the bill of costs has not been finally determined. For example, if Mr Kowalski acknowledged liability with respect to the bill of costs, paid $1,000 (pursuant to Judge Lunn’s order of 22 July 2005), and obtained permission pursuant to s 39 of the Supreme Court Act, he could apply to lift the stay ordered by Judge Dart.
On 23 October 2014, Mr Kowalski filed his notice of appeal to the Full Court. He seeks an extension of time as the notice of appeal was filed 10 days out of time. Mr Kowalski asserts that he had to wait until Blue J gave him permission to file the Notice of appeal. I would extend the time within which to seek permission to appeal to 23 October 2014 pursuant to SCR 295(1)(a).
At paragraph [4] of the notice of appeal, Mr Kowalski asserts Blue J gave him permission to appeal Peek J’s judgment to the Full Court. The only permission given by Blue J was permission pursuant to s 39 of the Supreme Court Act. The appeal has not been referred to the Full Court pursuant to SCR 280(2) nor has Mr Kowalski been given permission to appeal pursuant to SCR 290.
Mr Kowalski’s grounds of appeal are as follows:
1.Justice Peek erred in law in paragraphs 21, 22, 23, 24, 25, 26, 27 and 28 of his decision on the grounds that: Master Dart was wrong in fact when he found that the predominant purpose of the appellant was to deny any liability to pay any legal costs to the respondent and to seek the return of everything that the appellant had previously paid to the respondent, plus compound interest; and
2.Justice Peek erred in finding that it was appropriate for Master Dart to stay the adjudication of the respondent’s legal costs on the ground that the appellant had lodged a Notice of Dispute to the respondent’s Bill of Costs on a line by line basis and the appellant had requested Master Dart to set it down for adjudication on a line by line basis.
Permission to Appeal
On 10 February 2015, Mr Kowalski argued his appeal before the Full Court without the Court first considering, pursuant to SCR 290, whether permission to appeal to the Full Court should be granted. As permission to appeal has not been granted, the Full Court must now, before considering the appeal, consider whether Mr Kowalski is entitled to permission to appeal.
Conclusion
Judge Dart stayed the September 2013 application as an abuse of process. Justice Peek dismissed the appeal from Judge Dart’s judgment, saying that:[24]
Judge Dart correctly found that the predominant purpose of the appellant was to deny any liability to pay any legal costs to the respondent and to seek the return of everything that he has previously paid (plus interest) on grounds of absence of liability to pay costs, absence of any retainer, fraud, theft, wrongdoing, etcetera. In such circumstances, the question of precisely how much would be owing under a bill of costs is irrelevant since he denies any liability to pay whatever the amount might be. In a word, the matter of liability rather than quantum is what the present proceedings are really all about.
Justice Peek’s comments resonate with what transpired before the Full Court:[25]
I would simply add that the conclusion to which Judge Dart came as to the predominant purpose of the appellant has again been well and truly confirmed during the course of these appeal proceedings.
[24] Kowalski v RJ Cole & Partners [2014] SASC 137 at [22].
[25] Kowalski v RJ Cole & Partners [2014] SASC 137 at [24].
Mr Kowalski reiterated during submissions before the Full Court that he has no liability whatsoever to pay the respondent’s costs.
Mr Kowalski seeks to use the September 2013 application to dispute the existence of a retainer with the respondent and liability to pay the legal costs the subject of the bill of costs. He does so by attempting to evade the 22 July 2005 order of Judge Lunn. He has had two judicial officers and now the Full Court consider the merits of his application.
Without setting out their detailed reasons, I agree with Peek J and Judge Dart that the application is an abuse of process. Section 42 of the Act can only be utilised if a person to whom or for whom legal services have been provided accepts they are liable to pay the legal costs.
In King William Law Chambers v Mobitel (International) Pty Ltd,[26] the Full Court held that the Court’s role prescribed by s 42 of the Act is confined to the quantification of fees payable and issues of liability have to be determined by other means. In Kedem v Johnson Lawyers Legal Practice Pty Ltd,[27] Kourakis CJ considered that s 42 empowered the Court to consider disputes about fee waivers or payments made on account of fees. It is my view that the Court may have to determine issues of liability on an application in respect of s 42 of the Act in the limited circumstances identified by Kourakis CJ in Kedem and White J in Von Doussas Legal Pty Ltd v Nasr.[28] That is, in circumstances where there is an acknowledgement of liability to pay (thereby enlivening s 42) and the issue in dispute focuses on, for example, whether payments toward legal costs have in fact been made or whether fee waivers have been agreed or where reimbursement is sought by a person who has paid costs.
[26] (1981) 29 SASR 316.
[27] (2014) 121 SASR 118.
[28] [2008] SASC 206.
Mr Kowalski consistently continues to dispute he has any liability to pay the respondent’s legal costs.
Justice Peek’s judgment was correct. There was no merit in any of the submissions made by Mr Kowalski before the Full Court.
Accordingly as there is no merit to the appeal I would refuse permission to appeal.
I would make orders extending time within which to seek permission to appeal to 23 October 2014 and refusing permission to appeal.