Kowalski v Sim, Harris, Cole, Dowd & R J Cole & Partners (No 2) No. DCCIV-96-957

[2003] SADC 161

KOWALSKI  v  SIM, HARRIS, COLE,
DOWD & R J COLE & PARTNERS (No. 2)
[2003] SADC 161

Judge Rice
Civil

1. This is an appeal against the decision of Master Norman made on 16th September, 2003 and posted to the parties on 17th September, 2003.  The proceedings before Master Norman were a taxation of costs.  This appeal is one of a number of appeals against decisions of Master Norman.  I mention that fact because, during the course of his submissions, Mr Kowalski sought to address factors relevant to appeals yet to be heard, in support of the present appeal.  By way of illustration, see Annexure B to the Amended Notice of Appeal.  I endeavoured to restrict the submissions to relevant matters.

2. Notwithstanding the imprecise terms of the Amended Notice of Appeal, Mr Kowalski argued the appeal on these two grounds:-

   1.That Master Norman should have disqualified himself on the ground of bias once Mr Kowalski made the application;  and

   2.That the Bill of Costs submitted for taxation was not in taxable form and, because the parties had not conferred about the individual items in dispute, the taxation should not have commenced or continue and should now be struck out as an abuse of the process of the courts.

3. It is convenient to deal with the second ground first. A right of appeal is conferred by s.43(1) of the District Court Act to “....appeal against any judgment given in an action.”  In the case of a judgment given by a Master, the appeal lies to the District Court constituted of a Judge.  “Judgment” means “a judgment, order or decision and includes an interlocutory judgment or order” (DCA s.3(1)).  “Interlocutory judgment” and “interlocutory order” are not separately defined.

4. The second ground of appeal does not relate to “a judgment, order or decision” in the sense in which those words are known to the law.  On this point I refer to Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 per Olsson J (at 137):-

   “In this regard it is to be recalled that the expressions “judgment” and “order” have a technical, legal, signification.  Essentially they embrace formal decisions, binding on and enforceable between the parties, which dispose of and determine a specific matter or question in proceedings.  They are what Barwick CJ has described as “operative judicial acts” which are “definitive of legal rights”:  see N J Williams, Supreme Court Civil Procedure, Victoria, p 285;”

5. Although that quotation does not also use the word “decision” along with “judgment” and “order”, the context of its use embraces the same meaning.

6. The remaining portion of the definition of “judgment” includes “an interlocutory judgment or order”.  There is no doubt that the decision does not finally dispose of the rights of the parties on this ground, but it is also not a “judgment or order.”  Perhaps it may be characterised as a “finding” or “view” but it is not an “interlocutory judgment or order.”  On that view of the decision, there is no right of appeal to a Judge of this Court.

7. Even if that be a wrong characterisation, the Bill of Costs as submitted is in the usual “taxable form”:  (see the Bill of Costs on file;  see also Pickering v Smoothpool (No. 6) [2001] SASC 440 per Gray J at paras.6, 7 and 29-31). Further, there is no doubt that a Bill of Costs in taxable form was lodged and served.

8. The remaining complaint under the second ground as argued was that a date for taxation was fixed without the opportunity to confer about disputed items and before confirmation that such conferring had taken place had been received by the Court:  (see Second Schedule to the Rules).

9. There are a number of answers to that submission.  First, the Second Schedule, strictly speaking, refers only to a disputed taxation between “practitioners”.  Mr Kowalski is not a legal practitioner.  The terms of the Schedule do not apply when there is a litigant in person.  Secondly, as I understand the submissions made before me by Mr Forrest, on behalf of the respondents to the appeal, Mr Kowalski was given the opportunity to confer about disputed items but that did not occur.  Further, I also note an order made by Master Norman on 19th August, 2003.  Mr Kowalski had filed a Notice for Dispute which it was contended did not comply with the rules.  He was given the opportunity to rectify any faults in the notice by 8th September, 2003 and the Master nominated the 16th September, 2003 as the date for taxation whether or not Mr Kowalski had complied with his obligations in relation to a Notice to Dispute.  Thirdly, even if there was no proper opportunity to confer about disputed items, it was within the power of the Master, given the history of delay at the hands of Mr Kowalski, to commence and continue the taxation without the necessary “written confirmation” referred to in the Schedule.  The second ground of appeal is not made out.

10. I move now to a consideration of the first ground in relation to a failure by the Master to disqualify himself on the basis of bias.  There is no clear authority that such a ground can be the subject of appeal at this stage:  see IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151. For my part I proceed to deal with the ground on the basis that an appeal does lie at this stage.

11. The circumstances that gave rise to this complaint are set out in the reasons of the Master.  They are as follows:-

    “In this taxation of costs Mr Kowalski has applied for me to disqualify myself on the grounds of bias.  He relies upon a matter heard before me on 13 August 2003 in this action on an application by the non-party Mitsubishi for orders under the Enforcement of Judgments Act.  Mr Kowalski did not attend that hearing but wrote to the court registry on a medical certificate of a Dr Thompkins.

    On Mitsubishi’s application I received the transcript of a hearing on 4.8.03 in the Full Bench of the Worker’s Compensation Tribunal where Dr Thompkins gave evidence as to Mr Kowalski’s medical condition.  This evidence was to the effect that Mr Kowalski’s medical condition was such that there was no prohibition from Mr Kowalski attending court to argue his case.

    After receiving this material I published brief reasons to the effect that a proper medical foundation had not been laid out for an adjournment.  I did not make any finding as to the credibility of Mr Kowalski himself.  Nor did I make any findings that Dr Thompkins evidence was unreliable.  On the contrary, it was Dr Thompkins evidence before the tribunal which formed the basis of my finding that there was no medical reason for Mr Kowalski’s absence.”

12. Mr Kowalski does not specify whether the bias alleged was “actual bias” or “apprehended bias”.  There is nothing in the material to suggest actual bias and I therefore approach the matter as amounting to a complaint of apprehended bias, possibly by way of pre-judgment or adverse judgment.

13. The relevant principles have been discussed in cases both in the High Court (Ebner v Official Trustee Bankruptcy (2000) 176 ALR 644) and the Full Court of this State (IOOF Australia Trustees Ltd v Seas Sapfor Forests (supra) and Kola v District Court of South Australia & Anor [2001] SASC 268). I refer in particular to the test referred to by Doyle CJ in Kola’s case (supra) in para.26:-

    “It is sufficient to quote the now well established test:

    “It has been established by a series of decisions of [the High Court] that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

14. The reasons of the Master indicate that he correctly applied those principles.  Merely because the Master refused an adjournment on a previous occasion does not indicate bias or give rise to apprehended bias.

15. Mr Kowalski also informed me that the taxation process had commenced and I note from the file that it is due to resume on 19th January and 28th January, 2004.  In the taxation that has taken place so far, Mr Kowalski informed me that the Master refused him access to certain documents.  As to precisely when that refusal was made, or in respect of what documents it was made, is not clear from the file.  On the material provided to me by Mr Kowalski, there is nothing to suggest bias by the Master in that process.

16. The order is that the appeal be dismissed.  I will hear the parties as to the costs of this appeal.  The time between now and January will give Mr Kowalski abundant time to confer about disputed items of taxation.