Kowalski v Stanley & Partners
[2016] SASCFC 74
•22 July 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
KOWALSKI v STANLEY & PARTNERS & ANOR
[2016] SASCFC 74
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Lovell)
22 July 2016
PROCEDURE - COSTS - TAXATION
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - VEXATIOUS LITIGANTS AND PROCEEDINGS
Appeal against a decision of a single Judge to refuse permission to appeal against an order of a Master dismissing an application to tax a bill of costs.
The first respondent acted for the appellant in relation to claims against his former employer and sought to recover those costs in 1993. The appellant consented to judgment and paid the judgment sum. In 1995 he made three unsuccessful applications to set that judgment aside, and sought an extension of time within which to appeal to the Supreme Court. In 1996 a Judge of this Court refused that application and the subsequent applications to reopen the decision and to set aside the order. The appellant did not seek to appeal this decision to the Full Court until 2012 when he sought an extension of time to file a notice of appeal against the refusal to extend time to appeal. This application was dismissed by a Judge of this Court. On 20 January 2014 the appellant was declared to be a vexatious litigant, but was subsequently granted permission to institute an application for a Master to tax the costs of the first respondent, to which the consent judgment of 1993 related.
On 27 November 2014, a Master heard the appellant’s application to tax the costs. The second respondent, who had been a partner in the first respondent firm, sought an order that the application for a taxation be dismissed or permanently stayed. The Master granted the application on three bases: that s 42(1) of the Legal Practitioners Act 1981 invests the Court with a discretion as to whether to order a taxation and that in the circumstances that discretion should be exercised adversely to the appellant; that the application should be found to be an abuse of process; and that because the appellant had entered into a consent judgment, the doctrine of res judicata applies and is fatal to the application. The appellant sought permission to appeal to a single Judge against the Master’s decision. The Judge dismissed the application. The appellant now appeals against that decision to the Full Court.
Held, per Kelly and Peek JJ (dismissing the appeal) (Lovell J agreeing in separate reasons):
1. The Master was clearly correct in holding that he had a discretion whether to tax the costs and that the correct exercise of that discretion in all the circumstances of this case was to refuse to tax.
Held, per Kelly and Peek JJ:
2. The Master’s decision to dismiss the application as an abuse of process was correct, as was the Judge’s decision to decline to interfere with that decision.
Legal Practitioners Act 1981 ss 42, 42(1), 42(2), 42(5); Supreme Court Act 1935 s 39, referred to.
Kowalski v Stanley & Partners & Anor [2014] SASC 198; Kowalski v Stanley & Partners & Anor [2015] SASC 130; Kowalski v R J Cole & Partners (Unreported, Supreme Court of South Australia, Judge Dart, 29 May 2014); Kowalski v R J Cole & Partners [2014] SASC 137; Kowalski v R J Cole & Partners [2015] SASCFC 35; Kazimir Kowalski v R J Cole & Partners [2015] HCASL 119 A9/2015; Nagy v Ryan (2003) 225 LSJS 432; Von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46, discussed.
Attorney-General v Kowalski [2014] SASC 1; DA Starke Pty Ltd t/as Starke Lawyers v Yardoo Pty Ltd (2009) 262 LSJS 248, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"abuse of process", "discretion", "may order"
KOWALSKI v STANLEY & PARTNERS & ANOR
[2016] SASCFC 74Full Court: Kelly, Peek and Lovell JJ
KELLY and PEEK JJ. Mr Kowalski is a former client of the first respondent, Stanley & Partners, a firm of solicitors which acted for him between 1988 and 1991 in relation to a common law claim and a worker’s compensation claim against his former employer. Stanley & Partners ceased trading in the year 2000. Mr Bourne, the second respondent, was a partner of Stanley & Partners at all material times.
In 1991 Mr Kowalski instructed the firm R J Cole & Partners to take over the conduct of both matters. Stanley & Partners indicated that they were prepared to release the files on the basis that costs be agreed in the amount of $2,000 plus disbursements. Mr Kowalski, by his new solicitors, rejected that proposal and requested that the costs be taxed (to be referred to as “the subject costs”). Stanley & Partners retained a costs consultant who prepared a bill in taxable form with estimated costs owing in the amount of $6,311.11.
Stanley & Partners issued proceedings in the Magistrate’s Court (action no 788 of 1993) claiming the sum of $6,311.11, plus court costs. Mr Kowalski then consented to judgment in the amount of $6,684.11 (inclusive of costs) which was entered on 29 January 1993. On 26 July 1993, Mr Kowalski paid that judgment sum and therefore no taxation occurred.
Proceedings subsequent to the appellant’s payment of the judgment sum
Bampton J, whose judgment is here under appeal, has recounted in detail the course of proceedings subsequent to the appellant’s payment of the judgment sum and we set out the following history as recounted by her Honour.
The initial proceedings in the Magistrate Court
Bampton J summarised the initial proceedings in the Magistrates Court thus:
[10] On 29 March 1995, Mr Kowalski filed an application in the Magistrates Court seeking that the judgment be set aside. The application was dismissed by Magistrate Millard SM on 7 April 1995. On 9 October 1995, Mr Kowalski filed another application seeking that judgment be set aside. That application was dismissed by Mr Johansen SM on 3 November 1995. Mr Kowalski filed yet a further application on 10 November 1995 seeking that the costs be rescinded or taxed. That application was dismissed by Mr Millard on 17 November 1995.
[11] On 27 November 1995, Mr Millard published detailed reasons for dismissing Mr Kowalski’s application filed 10 November 1995.
[12] In his reasons, Mr Millard referred to Mr Kowalski’s affidavit (sworn 10 November 1995) filed in support of his application. Mr Millard stated that in that affidavit, Mr Kowalski asserted that he had consented to the judgment believing that the costs had been taxed in the Supreme Court and having learned that they were not taxed, he asserted it was unconscionable for Stanley & Partners to pursue judgment in this matter. Mr Millard stated that what Mr Kowalski’s affidavit did not depose to was the earlier history of the claim for costs and the various applications before the Court in respect of that claim or the fact that he had satisfied the judgment. Mr Millard referred to the application filed on 29 March 1995 where Mr Kowalski sought an order that judgment be set aside and that he be given leave to file a defence and counterclaim. At the hearing of the application on 7 April 1995, there was no appearance by or on behalf of Mr Kowalski. Mr Millard dismissed the application and ordered that Mr Kowalski pay Stanley & Partners’ costs. Mr Millard referred to a letter that Mr Kowalski had written to the Magistrates Court by letter dated 3 April 1995 stating:
With respect to the application to action number 788/93 that judgment against the defendant be set aside I ask to withdraw this application pending a police investigation into the matter. It was confirmed by a clerk of the Court during my phone conversation on 31 March 1995 that following the potential police investigation I will be able to lodge another (my underlining) application to set the judgment aside in regards to action number 788/93.
[13] Mr Millard also referred to Mr Kowalski’s affidavit not deposing to the fact that Mr Kowalski had also issued an application on 9 October 1995 which was dismissed by Mr Johansen on 3 November 1995. In that application, Mr Kowalski again sought an order setting aside his consent to judgment. Mr Millard referred to having informed Mr Kowalski that if he sought a review of Mr Johansen’s decision, he must institute an appeal.
[14] Mr Millard rejected Mr Kowalski’s argument that as a bill of costs had never been taxed Stanley & Partners was not entitled to recover judgment, stating:
The plaintiff was entitled to proceed to issue these proceedings and once judgment was entered the issue of quantum and of liability was resolved thus there was no basis upon which this Court could usefully stay the proceedings pending a taxation.
Mr Millard noted that the Magistrates Court has power to determine liability for legal costs and to fix quantum of the costs, but it has no jurisdiction to tax costs in the event of a dispute as to quantum. That jurisdiction, he said, lies exclusively with the Supreme Court pursuant to s 42 of the Legal Practitioners Act 1981 (SA) (the LPA).[1]
[15] Mr Millard said that if there is a dispute regarding quantum the Magistrates Court will adjourn the proceedings pending the issuing of an allocator by a Master of the Supreme Court certifying taxation of costs. He went on to say that it follows that where there is no dispute as to quantum there will be no taxation and where judgment is entered the judgment must be set aside before any question can arise as to a stay of further proceedings pending taxation. Mr Millard said he took the view that unless and until Mr Kowalski had judgment set aside, there was no basis upon which to order that costs be taxed.
[1] Schedule 3 of the LPA replaced the repealed Division 8 (ss 41 to 43) of the LPA on 1 July 2014. The effect of clause 9 of Part 4 of Schedule 2 to the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) No 44 is that repealed ss 41 to 43 of the LPA continue to apply to matters where first instructions were given before 1 July 2014.
The appeal to Williams J against the refusal(s) to set aside judgment
In Supreme Court action no 2472 of 1995, Mr Kowalski made application for an extension of time within which to appeal against the Magistrates Court decisions on 7 April, 3 November and 17 November 1995 dismissing his applications. Bampton J recounts in detail at [16] to [22] of her judgment the care with which Williams J approached the matter and the various adjournments he gave to Mr Kowalski to give him every chance of advancing an arguable case against Mr Bourne. Those proceedings before Williams J culminated in the following way as described by Bampton J:
[20] At the adjourned hearing on 15 November 1996, Williams J, in refusing Mr Kowalski’s application for an extension of time to appeal, said:[2]
[2] Transcript of proceedings, Kowalski v Stanley & Partners (Supreme Court of South Australia, Williams J, 15 November 1996) at pp 1-2.
Having previously adjourned the hearing to give Mr Kowalski the opportunity to adduce further evidence by affidavit, I have reached the conclusion that Mr Kowalski is not able to demonstrate even an arguable case. I consider that it would be oppressive, from the point of view of Stanley & Partners, that this matter should be allowed to proceed further in those circumstances. Accordingly, the application for extension of time is refused.
[21] On 8 July 1997, Mr Kowalski made application to Williams J to “reopen” the order he made refusing the extension of time within which to appeal.[3] Justice Williams refused Mr Kowalski’s application, stating there was nothing before him which would justify reopening the decision he made on 15 November 1996.
[22] On 11 July 1997, Mr Kowalski made yet another application seeking to set aside the order made by Williams J. On 25 July 1997, Williams J said:
I have reviewed the proceedings of 8 July 1997 in light of Mr Kowalski’s complaint. Having heard Mr Kowalski this morning I am satisfied there is nothing new which he can advance. After further discussion today Mr Kowalski intimated that he does not wish to argue that any further formal step need be taken to put on the court record the material upon which I have relied.
I have explained to Mr Kowalski there is in place a monetary judgment which entitles Stanley & Partners to take steps to recover money. I have refused to extend time to allow Mr Kowalski to apply to set aside the judgment which was originally entered by consent after Mr Kowalski obtained legal advice.
I have also explained to Mr Kowalski that this matter has now been exhaustively investigated before me and that as matters now stand I would not be prepared to consider any further application to vary my earlier orders. …
I have drawn the attention of Mr Kowalski to his right to apply for leave to appeal against my decisions. However, Mr Kowalski has indicated that he does not wish to take the matter further.
The application is dismissed.
[3] Kowalski v Stanley & Partners (Unreported, Supreme Court of South Australia, Williams J, 25 July 1997) at p 1.
Clearly, Williams J in the 1997 proceedings afforded Mr Kowalski every opportunity to bring forward all facts and circumstances surrounding the subject costs. Further, and of importance, if Mr Kowalski then had a complaint as to the hearing he had had before Williams J, he could have sought to appeal to the Full Court. He chose not to do so.
A further raft of proceedings commencing in May 2010
After the conclusion of the 1997 proceedings before Williams J, there appears to have been a pause for nearly 13 years. However, Mr Kowalski then launched a further raft of proceedings concerning the subject costs from May 2010 and those proceedings are summarised by Bampton J as follows:
Complaint to the Legal Practitioners Disciplinary Tribunal
[23] Mr Kowalski complained about Mr Bourne to the Legal Practitioners Disciplinary Tribunal on 8 May 2010 and 4 April 2012. The Tribunal resolved to make no finding of unprofessional conduct.
Federal Magistrates Court proceedings
[24] Mr Kowalski also commenced proceedings against Mr Bourne in the Federal Magistrates Court in May 2010. Mr Kowalski sought to re‑agitate his claim for recovery of costs on the basis of alleged fraud. The Federal Magistrates Court application proceeded to trial before Federal Magistrate Lindsay on 24 August 2010. The application was dismissed and Mr Kowalski was ordered to pay Mr Bourne’s costs in the sum of $9,675.
[25] Mr Bourne deposed in his 5 November 2014 affidavit that in light of Mr Kowalski’s apparent impecuniosity and the certainty that pursuing costs would result in additional litigation and cost to him, he has elected to date not to pursue recovery of the costs awarded by the Federal Magistrates Court.
Appeal to the Federal Court against Federal Magistrate’s decision
[26] Mr Kowalski appealed the Federal Magistrates Court decision to the Federal Court. The appeal was dismissed by Logan J on 28 March 2011. In his reasons for decision, Logan J stated that given the appeal’s complete absence of merit, Mr Bourne should have his costs on an indemnity basis.
[27] Mr Bourne is yet to formulate his claim for costs and disbursements in respect of the appeal to the Federal Court.
Complaints to the Legal Practitioners Disciplinary Tribunal about Mr Bourne’s counsel
[28] Mr Bourne stated in his 5 November 2014 affidavit that he was represented by Mr Camatta of Camatta Lempens in the Federal Magistrates Court action and, as a result of Mr Camatta acting for him, Mr Kowalski laid a charge against Mr Camatta in the Legal Practitioners Disciplinary Tribunal alleging unprofessional conduct.
[29] Further, as a consequence of appearing for Mr Bourne in the Federal Court appeal, Mr Kowalski laid a complaint in the Legal Practitioners Disciplinary Tribunal against Ms Nelson QC alleging unprofessional conduct.
Industrial Relations Court proceedings
[30] In Industrial Relations Court action 1114 of 2011, Mr Kowalski sought declarations to the effect that Stanley & Partners and Mr Bourne did not have any legal right to sue him for legal costs and disbursements in the sum of $6,684.11 in the Adelaide Magistrates Court and a declaration that the sum was obtained by fraud, unconscionably and illegally.
[31] Mr Bourne made application for summary dismissal of the proceedings which was heard by Judge Hannon on 15 June 2011. For reasons published on 23 August 2011, the summons was summarily dismissed.
Appeal to the Full Court of the Industrial Relations Court
[32] Mr Kowalski’s appeal against Judge Hannon’s decision was heard on 27 November 2014 by the Full Court of the Industrial Relations Court. In its reasons delivered on 29 May 2015, the Full Court dismissed the appeal noting that to allow the matter to proceed would be an abuse of process and that it was plainly vexatious. The Court permanently stayed the proceedings.
Private prosecution
[33] In September 2011, Mr Kowalski commenced a private prosecution against Mr Bourne alleging that Mr Bourne had committed 11 contraventions of the Criminal Law Consolidation Act 1935 (SA). That prosecution was dismissed by Dr Cannon SM on 7 November 2011.
Appeal to the Supreme Court
[34] Mr Kowalski then appealed to the Supreme Court against the dismissal of his prosecution. The appeal was heard by Kourakis J (as he then was) on 13 January 2012. In his ex tempore reasons, Kourakis J allowed the appeal for the limited purpose of changing the form of the order from one dismissing the Information, to an order staying it until further order on the basis of an abuse of process. In his judgment,[4] Kourakis J said:
[4] Kowalski v Bourne [2012] SASC 6 [8]-[9].
It is common ground on this appeal that a consent judgment for that amount was entered in the Magistrates Court in proceedings brought by Mr Bourne, as plaintiff, against Mr Kowalski, as defendant, seeking that sum by way of legal fees. It is also common ground that Mr Kowalski later brought an application in the Magistrates Court to have that judgment set aside, but was unsuccessful. I understand from Mr Kowalski’s submissions that the application was made on the grounds that the judgment was obtained by fraud.
The existence of that judgment is, in my view, an insuperable obstacle to the success of the information filed by Mr Kowalski. It is not open in criminal proceedings to find that an offence has been committed by the receipt of money payable under a judgment which has not been set aside. For that reason alone the information is bound to fail and should be stayed as an abuse of process.
His Honour also noted that the offences alleged were then about a decade old and that:[5]
[5] Kowalski v Bourne [2012] SASC 6 [13].
Finally, it appears from the history of litigation of which I have been informed, and the content of Mr Kowalski’s submissions, that Mr Kowalski bears a great personal animosity towards Mr Bourne and is anxious to bring proceedings to harass him in any jurisdiction in which it is possible to do so.
[35] It should also be noted that the Full Court of the Industrial Relations Court stated in its reasons:[6]
Like Kourakis J in Kowalski v Bourne it appears to us from the history of litigation between the appellant and Mr Bourne and the content of the appellant’s submissions that Mr Kowalski bears a great personal animosity towards Mr Bourne. For the same reasons is also appears that the appellant bears a great personal animosity towards RJ Cole. It appears that the appellant is anxious to bring proceedings to harass them in any jurisdiction in which it is possible to do so. In our view the irresistible inference to be drawn is that the proceedings were instituted for that purpose.
Permission to appeal decision of Kourakis J refused
[36] On 20 February 2012, Mr Kowalski’s application for permission to appeal against the decision of Kourakis J was refused.
Application for extension of time to appeal decision of Williams J
[37] On 1 March 2012, Mr Kowalski sought an extension of time in action number 2472 of 1995 to file a notice of appeal against Williams J’s 15 November 1996 decision refusing an extension of time. That application was dismissed by David J on 9 March 2012.
[6] Kowalski v Bourne and RJ Cole & Partners [2015] SAIRC 17 [92].
Parallel proceedings against R J Cole & Partners and Stanley & Partners
The above summary takes us to 20 January 2014 when the appellant was declared to be a vexatious litigant.[7]
[7] Attorney-General v Kowalski [2014] SASC 1.
Subsequent to that declaration, Blue J granted to Mr Kowalski permission pursuant to s 39 Supreme Court Act 1935 to institute separate parallel applications for a Supreme Court Master to tax both the R J Cole & Partners costs and the subject costs (to which the consent judgment in favour of Stanley & Partners entered on 29 January 1993, more than 23 years ago, related).
Mr Kowalski vehemently submitted to this present Full Court that Blue J was “a gatekeeper” and that if his Honour granted permission to institute proceedings, such proceedings could not possibly be later declared to be an abuse of the process of the Court. However, that very same submission has already been declared to be quite wrong in the course of the R J Cole & Partners proceedings.
The course of the R J Cole & Partners proceedings
There was no contradictor heard on the applications to Blue J in relation to either the R J Cole & Partners proceedings or the present proceedings; the ex parte permission given by his Honour was only for the institution of such proceedings and in no way purported to be some form of a guarantee that such proceedings would not be vigorously opposed by the defendants.
Mr Kowalski’s application to tax costs in the R J Cole & Partners litigation came on before Judge Dart prior to the present matter. In Kowalski v R J Cole & Partners,[8] Judge Dart decided that Mr Kowalski’s application was an abuse of the process of the Court. On 23 September 2014, an appeal against Judge Dart’s decision was dismissed by Peek J, who stated:[9]
[22] 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.
[23] 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;[10] Williams v Spautz;[11] Walton v Gardiner,[12] Batistatos v Roads and Traffic Authority (NSW)[13] and Moti v The Queen.[14] 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.
[24] 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.
[25] 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.)
[26] 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”[15] 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:[16] “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.)[17]
[27] The appellant again vigorously put that same position orally on the hearing of the appeal on Monday, 1 September 2014.
[28] These grounds are rejected.
[8] Kowalski v R J Cole & Partners (Unreported, Supreme Court of South Australia, Judge Dart, 29 May 2014).
[9] Kowalski v R J Cole & Partners [2014] SASC 137.
[10] (1989) 166 CLR 486, 502.
[11] (1992) 174 CLR 509.
[12] (1993) 177 CLR 378, 392-395.
[13] (2006) 226 CLR 256, 265-267.
[14] (2011) 245 CLR 456, 463.
[15] Fax machine imprint “28 August 2014 8:41PM”.
[16] At page 5 of the same fax, in a paragraph numbered 8 (but which is the second paragraph 8).
[17] See also a fax labelled by the appellant as “Faxed to Justice Parker on 31-8-14 at 5.45pm” (fax machine imprint “31 August 2014 8:01PM”) at pages 1, 2 and 6 and a fax labelled by the appellant as “Faxed to Justice Parker on 31-8-14 at 6.09pm” (fax machine imprint “31 August 2014 8:17PM”) at paragraph 20 at pages 10-14.
On 2 April 2015 a further appeal by Mr Kowalski to the Full Court was dismissed.[18] In each of those stages of the R J Cole & Partners litigation before Judge Dart, before Peek J (hearing on 1 September 2014)[19] and before the Full Court (hearing on 11 February 2015),[20] it was entirely obvious to each of those judicial officers that Mr Kowalski was abusing the process of the Court in seeking to deny liability for costs (a matter which had already been comprehensively litigated and decided adversely to Mr Kowalski) in the guise of an application for a taxation as to quantum.
[18] Kowalski v R J Cole & Partners [2015] SASCFC 35.
[19] Kowalski v R J Cole & Partners [2014] SASC 137 particularly at [22]-[27].
[20] Kowalski v R J Cole & Partners [2015] SASCFC 35 (Gray and Sulan JJ) [21]; [29]-[30] and (Bampton J) [70]-[76].
Further, it was held at each of those stages that any permission granted by Blue J pursuant to s 39, Supreme Court Act 1935 in no way affected either the subsequent rights of a defendant to any such instituted proceedings to raise objections to the propriety of the continuation of such proceedings before the judicial officer hearing such proceedings or the right of that judicial officer to accede to such an application and implement it.[21]
[21] And nor does the fact that documents initiating such proceedings are accepted by the Supreme Court Registrar for filing prevent the Judge later hearing the proceedings ordering such documents to be removed from the file as being an abuse of the process of the Court. Thus see Lunn’s commentary at [R53.20], Civil Procedure South Australia: “The fact that documents have not been rejected by the Registrar under r 53 does not affect the right of a party subsequently to have them struck out as an abuse of process: Kowalski v RJ Cole & Partners [2014] SASC 137 (Peek J), 23 September 2014, [17]-[18] and appeal dismissed: Kowalski v RJ Cole & Partners (2015) 122 SASR 320; [2015] SASCFC 35, (Full Court), 2 April 2015.”
On 13 August 2015, the High Court refused Mr Kowalski special leave to appeal from the decision of the Full Court in Kowalski v R J Cole & Partners.[22] In Kazimir Kowalski v R J Cole & Partners, Bell and Gageler JJ stated.[23]
1. The respondent, a firm of solicitors, represented the applicant in proceedings. Those proceedings were settled on terms which involved the making of a settlement payment into the respondent’s trust account. The respondent withdrew its fees from the settlement payment. In 1996, the respondent applied to have its costs taxed. Around the same time, the applicant commenced proceedings against the respondent in negligence. The District Court of South Australia (Judge Anderson) dismissed those proceedings in 2002, determining that the respondent had been entitled to withdraw its fees.
2. In 2005, the applicant successfully applied to have the taxation application struck out for want of prosecution. He later applied to have those orders set aside. In 2008, the Supreme Court of South Australia (Judge Lunn) dismissed that application and ordered that the applicant not be permitted to file any further interlocutory application without making a payment into court on account of the respondent’s costs. In 2013, without having made the payment into court, the applicant applied to tax the costs claimed by the respondent, uplifting the bill of costs prepared by the respondent in its application for taxation in 1996.
3. A Master of the Supreme Court of South Australia (Judge Dart) dismissed the application on the basis that it was an abuse of process. Judge Dart found that the application was an attempt to re-litigate issues that had been determined adversely to the applicant, including the applicant’s liability to pay the respondent’s fees. Appeals by the applicant to the Supreme Court of South Australia (Peek J) and to the Full Court of the Supreme Court of South Australia (Gray, Sulan and Bampton JJ) were dismissed.
4. The applicant now seeks special leave to appeal from the orders of the Full Court. The applicant does not have legal representation. The application therefore falls to be dealt with under r 41.10 of the High Court Rules 2014 (Cth).
5. We would refuse special leave to appeal. The decision of the Full Court involved the application of well-settled principles to a question of practice and procedure, and the applicant has not identified any question of law which would warrant a grant of special leave.
6. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.
[22] [2015] SASCFC 35.
[23] [2015] HCASL 119 A9/2015.
The subject hearing before Judge Dart
On 27 November 2014, a Supreme Court Master, Judge Dart, heard Mr Kowalski’s application to tax the subject costs. At that time, Mr Bourne sought an order that the application for a taxation be dismissed or be permanently stayed.
Judge Dart upheld Mr Bourne’s application on three independent bases and it is convenient to list them in the following order. First, that s 42 of the Legal Practitioners Act 1981 (“the Act”) invests the Court with a discretion as to whether to order a taxation and that, in all of the facts and circumstances here, that discretion should be exercised adversely to Mr Kowalski. Second, that the present application should be found to be an abuse of process of the Court and should therefore be permanently stayed. Third, that because Mr Kowalski had entered into a consent judgment, the doctrine of res judicata applies and is fatal to this application.
The subject appeal to Bampton J
Mr Kowalski sought permission to appeal to Bampton J against the decision of Judge Dart. After summarising both the background (as referred to above) and the reasons of Judge Dart, her Honour concluded:
[47] Judge Dart did not err in permanently staying the application for taxation as an abuse of process. The application to tax Mr Bourne’s costs is undoubtedly an abuse of process.
[48] The consent judgment entered on 29 January 1993 is a judgment on the merits for the purpose of res judicata. As noted by Lander J, with whom Cox and Prior JJ agreed, in Rogers v Legal Services Commission:[24]
[24] (1995) 64 SASR 572, 595.
There are circumstances where a plea of res judicata will be good even though there has been no investigation of the merits of the matter by the Tribunal. In cases where consent orders or judgments are entered, notwithstanding that the Court has been relieved of the obligations of carrying out the investigation, that consent judgment will operate as a bar to subsequent proceedings based upon the same subject matter.
[49] In Chamberlain v Deputy Commissioner of Taxation,[25] where a taxpayer had consented to judgment in proceedings brought by the Deputy Commissioner, the High Court said:[26]
[25] (1988) 164 CLR 502.
[26] (1988) 164 CLR 502, 508 (Deane, Toohey and Gaudron JJ, with whom Brennan J relevantly agreed).
The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring action at a later date. … But the principle of res judicata holds good in such a case.
[50] As Mr Millard correctly observed, before a taxation can take place pursuant to s 42 of the LPA the consent judgment has to be set aside. Mr Kowalski made three unsuccessful applications seeking to set aside the judgment in the Magistrates Court. He did not attend the hearing of the first of those applications as he was pursuing a “police investigation” and he asserted in correspondence to the Court that he would be able to lodge another application after the potential investigation.
[51] Mr Kowalski’s application for an extension of time to appeal against the Magistrates Court refusals to set aside the consent judgment was refused by Williams J on 15 November 1996. He attempted without success to seek an extension of time to appeal against Williams J’s refusal on 9 March 2012. As noted by Williams J, Mr Kowalski consented to the judgment in the Magistrates Court after obtaining legal advice. That legal advice is set out in the letter from Michael W Speck referred to in [19] above.
[52] Mr Kowalski has relentlessly made applications and commenced different actions in an attempt to subvert the consent judgment.
[53] The Federal Magistrates Court has ordered Mr Kowalski to pay Mr Bourne’s costs in the sum of $9,675. The Federal Court has made an indemnity costs order against Mr Kowalski. Judge Dart said he did not doubt that if Mr Kowalski had challenged the bill of costs in 1993, a number of items may have been taxed off. If this matter were not an abuse of process, and assuming a taxation did take place, Mr Bourne would, in my view, be entitled to in effect set off any amount taxed off his bill of costs against the costs Mr Kowalski has been ordered to pay him by various courts. Even after set off, Mr Kowalski would still have significant amounts to pay to satisfy the costs orders.
[54] As the application is clearly an abuse of process, I refuse permission to appeal. The consent judgment was entered 22 years ago, after Mr Kowalski obtained legal advice, which advice included the topic of taxation of costs. In the past 22 years, Stanley & Partners and/or Mr Bourne have been burdened with defending proceedings in the Magistrates, Federal Magistrates and Industrial Relations Courts. They have also had to defend appeals to the Supreme Court, the Full Court of the Industrial Relations Court and the Federal Court as well as complaints to the Legal Practitioners Disciplinary Tribunal.
[55] It is abundantly clear from the history of litigation between Mr Kowalski and Mr Bourne, Mr Kowalski’s submissions and conduct during the hearings before me in this matter that Mr Kowalski bears great hostility towards Mr Bourne. Like the Full Court of the Industrial Relations Court in Kowalski v Bourne and RJ Cole & Partners,[27] I too am led to drawing the irresistible inference that Mr Kowalski is determined to bring proceedings to harass Mr Bourne in any jurisdiction in which it is possible to do so.
[56] There must be finality to this matter.
[27] [2015] SAIRC 17.
The subject appeal to this Full Court
Despite Bampton J’s reference to finality, Mr Kowalski appeals to this Court against the judgment of her Honour. Because of his status as a vexatious litigant, he needed (and was granted by Blue J) permission pursuant to s 39, Supreme Court Act 1935 to institute an application to the Full Court for permission to appeal, if such permission be necessary.[28] It seems that the majority decision in Kowalski v R J Cole & Partners[29] decided that such further permission to appeal is not needed in circumstances where the order the subject of the proposed appeal is a stay of proceedings rather than a dismissal. We admit to some doubt as to the correctness of that decision, but we will follow it. We therefore approach this matter as an appeal rather than as an application for permission to appeal.
[28] It is to be noted that a person who has been declared to be a vexatious litigant may need two distinct levels of permission to institute an appeal. First, he or she needs a grant of permission pursuant to s 39 Supreme Court Act 1935 because of the status of a vexatious litigant. Second, according to the Rules of Court, the person may also need to obtain from the Full Court an additional grant of permission to appeal. However, as explained, such further grant of permission does not appear to be needed here.
[29] [2015] SASCFC 35.
Mr Kowalski’s grounds of appeal consist of numbered paragraphs which sequentially follow preceding paragraphs in his notice of appeal and are numbered 3 to 5. We will consider those grounds in the order 4, 5 and 3.
Ground 4 of appeal
In ground 4 of appeal, Mr Kowalski complains of paragraphs 19 and 20 of Judge Dart’s judgment which are as follows:
[19] It has to be accepted that it would be a rare case in which the Court exercised the discretion against an applicant seeking a taxation. However, the facts in this case are extreme. The costs were incurred, at the latest, in 1991. There is no material explaining why the applicant did not make an application for taxation until this year. The amount of costs is comparatively small. Even though there was, until recently, no time limit for the bringing of an application for a taxation, the longer the period before a taxation is requested, particularly without proper explanation, the more likely it is that the Court might exercise its discretion against permitting a taxation to be conducted.
[20] It is now 23 years since the last of the costs were incurred. The respondent firm has not traded since 2000. The partners of the firm are entitled, after such a lengthy period, to regard the affairs of the firm as finalised. In my opinion, there is considerable force in Mr Cogan’s submissions that the Court should exercise its discretion against permitting the taxation to proceed. If I had not held that the matter was an abuse of process, I would, in any event, have declined to proceed with the taxation.
Mr Kowalski submits that Judge Dart had no discretion not to tax the costs upon being asked to do so, no matter how belatedly and in whatever circumstances.
Consideration of ground 4 of appeal
Section 42 of the Act at the relevant time (prior to 1 July 2014), appeared thus:
42—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.
Judge Dart held that there is a discretion to either accept, or to reject, an application to tax costs pursuant to s 42(1). His Honour rightly emphasised that the words are “may order” rather than mandatory words such as “must”. We would add that the following words “The Supreme Court’s power” (as distinct from “duty”) again confirms that the Court has a power to tax, rather than an obligation to do so merely because an application has been made.
Judge Dart correctly noted that in Nagy v Ryan,[30] Gray J accepted submissions that the powers in s 42(1) and s 42(5) of the Act are discretionary. Gray J there stated:[31]
[26] The appellant submitted that the Magistrate erred in failing to consider and exercise her discretion pursuant to sections 42(1) and 42(5) of the Legal Practitioners Act. These sections provide a discretion to order that costs be taxed and to adjourn any recovery proceedings until the taxation of costs has been completed. …
[27] Counsel for Mr Ryan submitted that section 42 provides a discretion to order taxation following an application for taxation. It was said that no such application had been made. Mr Nagy had made no complaint regarding the accounts. There had been no request before proceedings for an itemised account. In any event at the trial there was no dispute with respect to the agreed fee for the trial or the agent fee for the appeal.
[28] Counsel further submitted that the power in section 42(5) was discretionary. The section provides that the court ‘may order’ and ‘may adjourn’. Counsel said that it was reasonable for the Magistrate not to exercise her discretion to make such an order. This was particularly relevant given that Mr Nagy made no prior complaint about the claim for professional fees.
[29] I accept these submissions. As was apparent from evidence presented to the Magistrate the vast bulk of the account was undisputed. Taxation of the bill had not been requested by Mr Nagy. This ground is without substance.
[30] (2003) 225 LSJS 432.
[31] (2003) 225 LSJS 432, 437.
In this Court, reference was made in argument to the decision of the Full Court in Von Doussas Legal Pty Ltd v Nasr.[32] That was a decision on rather complex facts which we do not fully rehearse here. However, in the course of their reasons, the Court referred to s 42 and stated:[33]
[69] The power contained in subsection (2) is discretionary. It is unlikely to be exercised where there is a dispute in another court requiring oral evidence as to the existence or otherwise of the retainer. It could well be exercised if such a dispute has been resolved or did not exist and a question of quantum or liability for particular items under the retainer requires resolution. It probably does not require a recovery action to be stayed if there is other evidence as to the reasonableness of the costs. It is a complementary power to that referred to by the Court in KWLC Case[34] of the trial court adjourning proceedings to enable the disputed costs to be taxed.
[32] (2009) 105 SASR 46 (Bleby, Gray and Layton JJ).
[33] Von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46, 60.
[34] King William Law Chambers v Mobitel (International) Pty Ltd (1981) 29 SASR 316.
As we understand Mr Kowalski’s submission concerning this passage, it is that by here referring only to sub-s (2) of s 42, there arises an inference that the Full Court considered that the position in relation to s 42 sub-s (1) is different, namely that there is there no discretion.
The obvious answer to that submission is that no such inference is to be drawn because the Full Court, at this point in their judgment in Von Doussas were simply directing attention to s 42(2). Further, if one looks more closely at the decision in Von Doussas, one notes that the Court stressed that the powers referred to in s 42 are to be construed in a flexible way. Thus the Court observed that in a case where the court of trial is other than the Supreme Court, it may well be appropriate to refuse the application of one party to tax in the Supreme Court on the basis that justice in the particular case requires taxation by the court of trial. Indeed, as an essential part of the decision in Von Doussas, the Full Court approved the decision of the Supreme Court taxing Master to refuse to accede to Von Doussas’ application to tax their costs of “the conflict appeal”. Thus the Court stated:
[30] The Magistrate’s judgment was delivered on 20 November 2006. Without making any orders the matter was adjourned to 18 December 2006 for mention because the actual amount payable by Mr Nasr had not been ascertained. On that day the Magistrate directed that the parties negotiate in order to arrive at a judgment figure in respect of the unpaid fees excluding the costs of the conflict appeal. It is evident that no agreement was reached. On 13 April 2007 von Doussas initiated a taxation of their costs in the Supreme Court pursuant to s 42(1)(a) of the Legal Practitioners Act 1981 (SA). That section allows the Court to tax and settle a bill of costs “of a person claiming to be entitled to legal costs”. By that time von Doussas had rendered three invoices to Mr Nasr totalling $16,427.00. Mr Nasr had accepted as fair and reasonable the amount of $8,514.12. The bill of costs that von Doussas lodged for taxation included additional items and amounts not previously billed, and claimed a total of $29,411.35.
[31] Two preliminary points arose before the taxing Master. One concerned the attempt by von Doussas to have the Master tax the whole of von Doussas’ costs, including the costs of the conflict appeal, in an attempt to circumvent the decision of the Magistrates Court. The Master ruled that he would not enter upon a taxation of the costs of the conflict appeal. The second point concerned the claim for additional amounts and items beyond those contained in the various invoices. The Master ruled that it was permissible for the solicitors to include, by way of particulars and further costs, items not specifically identified in the original invoices, but that the amount recoverable would be capped at the amount originally claimed in the invoices less any amount reasonably identified as appeal costs in that invoice. It was not permissible for the solicitors to increase the amount sought in respect of a particular item that had been identified in an original invoice and for which a specific amount had been charged in that invoice. (Emphasis added)
It is obvious that the Master’s decision in Von Doussas was predicated upon the Supreme Court having a discretion under s 42(1). Further, the use of the words “That section allows the Court to tax …” (as distinct from requires the Court) again confirms that construction. The Court went on to state:
[67] A similar remedy is available under the Legal Practitioners Act 1981, with the added flexibility that the bill can be taxed on the application of the solicitor under s 42(1)(a), as well as by the person who is liable to pay or has paid any legal costs.
…
[71] In short, there is nothing in the Legal Practitioners Act or in any relevant decision which confers any exclusive jurisdiction on this Court for the resolution of disputes on costs between a solicitor and a client or alleged client. I agree with the single Judge that s 42 provides a convenient and, I would add, a flexible means of resolving disputes both as to liability and quantum in such cases, with the principal role of this Court being, on taxation, to determine the amount of the costs where a retainer exists.
(Emphasis added)
It can therefore be seen that the problem for Mr Kowalski is that the very emphasis placed upon flexibility, and the specific approval by the Court in Von Doussas of the decision of the taxing master to refuse an application to tax, demonstrates recognition of the existence of discretionary power in s 42(1).
Of course, it must be stressed that in most cases an application to tax pursuant to s 42(1) should, and will, be granted. However, Judge Dart was well aware of this as he made clear in his judgment at [19] (reproduced above).
We consider that the facts and circumstances here concerning Mr Kowalski’s behaviour, as summarised by Bampton J above (and by Judge Dart in his own judgment), are so extraordinary as to be entirely unlikely to be encountered again. We conclude that Judge Dart was clearly correct in holding, first, that he had a discretion whether to tax under s 42(1) and, second, that the correct exercise of that discretion in all the circumstances of this very unusual case, was to refuse to tax and therefore dismiss the application.[35] We reject ground 4 of appeal.
Ground 5 of appeal
[35] Mr Kowalski referred the Court to the decision of Judge Withers in DA Starke Pty Ltd t/as Starke Lawyers v Yardoo Pty Ltd, (2009) 262 LSJS 248 but the facts there were entirely different and that decision has no bearing on the present situation.
In ground 5, Mr Kowalski complains of paragraphs 21 and 22 of Judge Dart’s judgment which are as follows:[36]
[21] … the application for a taxation is an abuse because it is being used as a vehicle by the applicant to contest liability issues, rather than simply for an actual taxation of the costs. A taxation is simply a quantification process. A taxation is not the vehicle for determining questions of liability.[37] The position of the applicant is that he never had any liability for costs to the respondent.
[22] In an unrelated recent taxation the applicant was using the taxation process to dispute liability. I held that that was an abuse of process. On appeal that finding was upheld.[38] In this matter where the applicant is again using the taxation process as a vehicle to dispute his liability to pay any costs at all, the same result would follow.
[36] Kowalski v Stanley & Partners & Anor [2014] SASC 198. Of course, the matter to which Judge Dart referred in his penultimate paragraph was Kowalski v R J Cole & Partners, the course of which litigation has been referred to above.
[37] King William Law Chambers and Williamson & Co v Mobitel (International) Pty Ltd (1982) 29 SASR 316.
[38] Kowalski v R J Cole & Partners [2014] SASC 137.
It is plain from the transcript of the proceedings before Judge Dart on 27 November 2014 that it was Mr Kowalski’s purpose to deny liability for costs and to claim a refund of all legal costs and disbursements paid in the guise of an application for a taxation going to quantum, just as it had been in the Kowalski v R J Cole & Partners litigation.
On the 27 November 2014 hearing, counsel for Mr Bourne referred to a letter from Mr Kowalski to the Registrar of the Supreme Court dated 13 January 2012 (appended to Mr Kowalski’s affidavit sworn on 14 November 2013 and tendered before Judge Dart) wherein he stated:
…
I claim that I did not have any legal obligation to pay Mr Bourne’s legal costs and disbursements on the grounds that on 25 February 1991 Mitsubishi Motors Australia Limited had paid Mr Bourne’s legal costs; therefore, the Taxing Master must refuse to tax Mr Bourne’s Bill of Costs, until Mr Bourne has established my liability to pay his legal costs, in the appropriate jurisdiction, in line with Judge Kelly’s order when he was going to tax RJ Cole & Ptnrs Bill of Costs and in line with King William Law Chambers v Mobitel 29 SASR 316.
I also dispute liability to pay any of Mr Bourne’s legal costs and the disbursements on the ground that he does not have an order from the Industrial Relations Court for his legal costs and there is no written costs agreement or a written retainer between Mr Bourne and me, therefore, he is not entitled to any legal costs from me. …
(Emphasis added)
In Mr Kowalski’s affidavit sworn on 14 November 2013 and tendered before Judge Dart), Mr Kowalski swore:
… I seek the following declarations and orders:
2.1A declaration that the 1st and 2nd respondent have not entered into a retainer agreement with the applicant, therefore, the applicant has no liability whatsoever to pay the 1st and 2nd respondent any legal costs or disbursements whatsoever. Therefore an order be made that the 1st and 2nd respondent makes a full refund of the legal costs and disbursements that the 1st and 2nd respondent has illegally, fraudulently and unconscionably obtained from the applicant. (See Cachia v Isaacs & Ors. (1985) 3 NSWLR 366).
2.2A declaration that the 1st and 2nd respondent illegally, unconscionably, fraudulently and improperly commenced Magistrates Court action No. 788 of 1993 against the applicant, in the civil jurisdiction of the Magistrates Court, instead of seeking and order for costs in the Industrial Court action No. 185 of 1992. Therefore, pursuant to rule 101.05 of the Supreme Court Rules, the applicant does not have any liability whatsoever to pay the 1st and 2nd respondent any costs that have arisen from the 1st and 2nd respondent’s act or omissions, therefore, an order must be made that the 1st and 2nd respondent makes a full refund of the legal costs and disbursements that the 1st and 2nd respondent has illegally, fraudulently and unconscionably obtained from the applicant. (See Cachia v Isaacs & Ors. (1985) 3 NSWLR 366).
2.3A declaration that the applicant has no liability whatsoever to pay the 1st and 2nd respondent any costs or disbursements for the preparation of the Bill of Costs in Taxable Form, although, the applicant has paid the 1st and 2nd respondent over $4,000.00 from preparing a Bill of Costs in Taxable Form, therefore, an order must be made that the 1st and 2nd respondent makes a full refund of the costs that the applicant has paid for the preparation of the Bill of Costs in Taxable Form. (See National Bank of Wales [1902] 2 CH 412; Re McCook (1887) 3 WN (NSW) 86).
2.4A declaration that the 1st and 2nd respondent costs were time based, however, the 1st and 2nd respondent did not enter into a written costs agreement with the applicant, therefore, the applicant had no liability whatsoever to pay the 1st and 2nd respondent any legal costs or disbursements whatsoever, therefore, an order must be made that the 1st and 2nd respondent must makes a full refund of the legal costs and disbursements that the 1st and 2nd respondent has illegally, fraudulently and unconscionably obtained from the applicant.
2.5A declaration that during Industrial Court action No. 185 of 1992, there was an unexplained and a blatant disregard for the requirements of the rules of the Industrial Court, by the 1st and 2nd respondent, therefore, the applicant does not have any liability whatsoever to pay the 1st and 2nd respondent any legal costs or disbursements, therefore, an order must be made that the 1st and 2nd respondent must make a full refund of the legal costs and disbursements that the 1st and 2nd respondent has illegally, fraudulently and unconscionably obtained from the applicant. (See Trnka v Commonwealth (SC(SA), Legoe J, 28-11-1986, Unreported.) (Emphasis added)
Judge Dart found that an abuse of process was occurring in the present proceedings on 27 November 2014, just as it had previously occurred in the parallel Kowalski v R J Cole & Partners proceedings. Justice Bampton declined to interfere with that finding. We agree with both the decisions of Judge Dart and Bampton J. We reject ground 5 of appeal.
Ground 3 of appeal
In ground 3, Mr Kowalski complains of paragraph 15 of Judge Dart’s judgment which is as follows:
[15] The solicitors sued for an amount of costs. A judgment in relation to the amount of those costs was consented to by Mr Kowalski and that judgment subsists. The issue of the liability for costs and the quantum of such costs merged into the judgment. It no longer has a separate existence.[39] I do not doubt that if the applicant had challenged the Bill of Costs in 1993, a number of items may have been taxed off. However, by consenting to a judgment, the right to do so was lost. To attempt to go behind the judgment, by way of a taxation of costs, to achieve a different result is an abuse of process. Strictly, that is enough to dispose of this matter, but I propose to consider the further points raised by Mr Cogan.
[39] Blair v Curran (1939) 62 CLR 464, 532.
We appreciate the force of his Honour's remarks as they apply in the present case. Further, we accept that Mr Kowalski’s attempts to set aside judgment were dealt with by the courts at extraordinary lengths in the various proceedings summarised by Bampton J above, and that the present application to Judge Dart was no more than a blatant attempt to start all over again.
However, we would wish to reserve the more general question as to whether a consent judgment will always be a bar to a subsequent request for a taxation of the underlying costs. Having regard to our above findings that Judge Dart was correct in each of his first two alternative bases for deciding against Mr Kowalski, we do not consider it to be necessary to further consider this third basis.
Conclusion
As indicated above, Judge Dart supported his orders on three independent alternative bases and Bampton J took the same approach. Therefore, in order to succeed in his appeal, it is necessary for Mr Kowalski to demonstrate that each of those three bases is incorrect. We have positively determined above that, in relation to both of the first two bases discussed, he has failed to demonstrate error; and we have further decided that it is therefore unnecessary to come to a final conclusion concerning the third independent alternative basis.
Accordingly, the appeal is dismissed.
LOVELL J:
In relation to ground 4 of this appeal I agree with the analysis of Kelly J and Peek J and would dismiss the appeal on that basis.
However I wish to add a few remarks. In December 2014 Blue J declared Mr Kowalski to be a vexatious litigant in relation to a number of matters. The subject of this appeal is not one of those matters.
The genesis of this matter lies in problems the appellant had with his employer Mitsubishi in the late 1980s.
Mr Bourne, of the then firm Stanley & Partners, acted on Mr Kowalski’s behalf in relation to a claim (or claims) for compensation. In 1991 Mr Bourne’s services were terminated by Mr Kowalski and he instructed another firm to act.
After his services were terminated Mr Bourne sent Mr Kowalski a costs invoice for $2152.02. Mr Kowalski disputed the amount and Mr Bourne had his file independently assessed. An amended account in the sum of $6311.11 was sent to Mr Kowalski. This included amounts not claimed in the original invoice and also the cost of drawing the bill being $2530. When Mr Kowalski did not pay the invoice, Stanley & Partners filed a claim in the Magistrates Court seeking payment of the sum of $6311.11. After seeking independent legal advice Mr Kowalski consented to judgment. Mr Kowalski subsequently complained that he had been overcharged and also that he should not have had to pay the $2530 for the cost of the preparation of the taxable bill of costs and he also disputed other items of the bill. As set out in the judgment of Bampton J he failed in his attempt to have that consent judgment set aside. After that time he pursued Mr Bourne in different jurisdictions without success.
His attempts to redress what he considers to be an injustice are set out in the judgment of Bampton J. Mr Bourne has had over 20 years of litigation to contend with over this account.
In my view a person has a statutory right to have their legal costs taxed, pursuant to s 42 of the Legal Practitioners Act 1981 (SA) even if the costs have been paid. The right exists, for example, independently of the proceedings brought in the Magistrates Court by Stanley & Partners. The question of res judicata, does not of itself stop Mr Kowalski from seeking to utilise s 42. However as articulated by Peek and Kelly JJ, with whom I agree, the right to have the costs taxed is a discretionary one. The issue of res judicata has a role to play as a factor in the exercise of the discretion.
It was accepted before Judge Dart and Bampton J that if Mr Kowalski was allowed to pursue the taxation of his costs some amounts were likely to be deducted from the sum of $6311.11. However it is difficult to see what Mr Kowalski could achieve even if the costs were taxed. Even if Judge Dart had allowed them to be taxed he could stay any attempt by Mr Kowalski to in some way enforce the taxation. It is also arguable that the consent judgment Mr Kowalski entered, as mentioned earlier, may stand in his way in taking this matter any further.
The application to now have the Court tax the costs occurs some 23 years after he consented to judgment. His application has been refused by Judge Dart and Bampton J. Judge Dart was entitled to exercise his discretion to refuse to allow the taxation to proceed. It has not been shown that the discretion was exercised incorrectly or miscarried in any way. As stated the facts in this case are extreme.
I would dismiss the appeal on this ground. Accordingly I do not need to decide the other grounds of appeal
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