Kowalski v Stanley & Partners

This case concerned an appeal by Mr Kowalski against a decision of Judge Dart, who had dismissed Mr Kowalski's application to have legal costs taxed. Mr Kowalski had previously made several applications in the Magistrates Court seeking to set aside a judgment, which were all dismissed. His final application sought to rescind or tax the costs awarded against him. The Magistrates Court, per Magistrate Millard, held that it lacked jurisdiction to tax costs, as this power resided exclusively with the Supreme Court under section 42 of the Legal Practitioners Act 1981 (SA). Magistrate Millard further determined that there was no basis to order taxation as the judgment had not been set aside.

The central legal issue before the Full Court was whether the Supreme Court, under section 42(1) of the Legal Practitioners Act 1981 (SA), had a discretion to refuse an application to tax costs, or whether it was obliged to tax costs upon being asked to do so, regardless of the circumstances or the lateness of the request. Mr Kowalski contended that the court had no such discretion and was bound to tax the costs.

The Full Court, comprising Kelly, Peek, and Lovell JJ, affirmed the decision of Judge Dart. The Court reasoned that the wording of section 42(1), specifically "may tax and settle," indicated a discretionary power rather than a mandatory duty. This interpretation was supported by the phrase "The Supreme Court's power," which suggested a power to act, not an obligation to do so simply upon application. The Court also referred to the decision in *Nagy v Ryan*, where Gray J had similarly held that the powers conferred by sections 42(1) and 42(5) of the Act were discretionary. The Court found that the Magistrate had correctly exercised her discretion in dismissing the application to tax costs, particularly given the history of prior unsuccessful applications by Mr Kowalski and the fact that the judgment had not been set aside.

The appeal was dismissed.