Kowalski v Stanley & Partners & Anor - [2014] SASC 198

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KOWALSKI v STANLEY & PARTNERS & ANOR
[2014] SASC 198
Reasons of Judge Dart a Master of the Supreme Court
17 December 2014
PROCEDURE - COSTS - TAXATION
Application for a taxation pursuant to Section 42 of the Legal Practitioners Act 1981 - judgment previously obtained in respect of costs, doctrine of res judicata considered - application stayed as an abuse of process.
Legal Practitioners Act 1981 s 42; Trade Practices Act 1975 (Cth) , referred to.
Attorney-General v Kowalski [2014] SASC 1; Blair v Curran (1939) 62 CLR 464; Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273; Kinch v Walcott [1929] AC 483; King William Law Chambers and Williamson & Co v Mobitel (International) Pty Ltd (1982) 29 SASR 316; Kowalski v Bourne [2012] SASC 6; Kowalski v R J Cole & Partners [2014] SASC 137; Nagy v Ryan (2003) 225 LSJS 432, considered.

KOWALSKI v STANLEY & PARTNERS & ANOR
[2014] SASC 198

The firm of Stanley & Partners acted for the applicant between 1988 and 1991 in relation to a workplace injury. There was both a common law claim and worker’s compensation claim against the applicant’s employer.
In 1991 the applicant instructed R J Cole & Partners to take over the conduct of both matters. The applicant has applied for a taxation of the costs charged by the respondent firm. The matter has a lengthy history.
There were initial discussions about releasing the Stanley & Partners file to R J Cole & Partners. Stanley & Partners indicated they were prepared to provide the file on the basis that costs be agreed in the amount of $2000 plus disbursements. The applicant, by his new solicitors, rejected that proposition and requested that the costs be taxed. Stanley & Partners retained a cost consultant to prepare a bill in taxable form. The prepared bill estimated the costs in the amount of $6311.11. It was never the subject of a taxation.
Stanley & Partners then issued proceedings in the Magistrate's Court claiming, with the addition of Court costs, the sum of $6684.11. The applicant consented to judgment which was entered on 29 January 1993. The judgment sum was paid on 26 July 1993.
In 1995 the applicant made three separate applications in the Magistrate's Court to set aside the consent judgment. Each of those applications was dismissed. The applicant purported to appeal against the three Magistrate's Court decisions. The appeal was dismissed by Williams J on 25 July 1997.
In May 2010 Mr Kowalski issued proceedings in the Federal Magistrate's Court against Mr Bourne seeking to recover the costs paid on the basis, inter alia, of alleged breaches of the Trade Practices Act 1975 (Cth). On 24 August 2010 Federal Magistrate Lindsay dismissed the application and ordered the applicant pay Mr Bourne’s costs fixed in the amount of $9675. Those costs have not been paid.
The applicant appealed the finding of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] SASC 198
Decision Date: 17 December 2014

CaseChat Overview and Summary

The proceedings in Kowalski v Stanley & Partners & Anor involve an application by the respondent for a taxation of costs pursuant to Section 42 of the Legal Practitioners Act 1981. The initial dispute arose from a judgment in which the respondent was awarded costs. The application for taxation of those costs was deemed to be an abuse of process by the court, taking into account the doctrine of res judicata.

The central legal issue before the court was whether the application for taxation of costs was a permissible exercise of jurisdiction under the Act, or if it constituted an abuse of process due to the doctrine of res judicata. The doctrine of res judicata generally prevents the re-litigation of a matter that has already been decided by a competent court. The court needed to determine if the application for taxation was an attempt to circumvent the finality of the judgment already rendered.

In delivering the judgment, the court held that the application for taxation was an abuse of process and was therefore stayed. The court found that the doctrine of res judicata applied, meaning that the costs already awarded in the previous judgment were final and could not be re-litigated through a taxation application. The court concluded that the application for taxation was an improper attempt to circumvent the finality of the costs decision, and as such, the application was appropriately stayed.

Orders