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Titan v Babic

Titan v Babic

Case [1995] FCA 813 11 October 1995

Civil Litigation & Procedure

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CATCHWORDS

COSTS - Appeals as to Costs - Taxation - reconsideration by the taxing officer - appeal from reconsideration - 'practice' of superior courts - general care and conduct - percentage allowance chosen - adequacy of reasons - duty of taxing officer to give adequate reasons.

COSTS - Appeals as to Costs - two counsel - costs for senior counsel - litigant in person on appeal to Full Court of the Federal Court from decision of the Full Court of the Supreme Court of the ACT - relevant considerations

COURTS AND JUDGES - Judges - role of judges where self-representing litigant.

Federal Court Rules Order 62 r44

Federal Court Rules Order 62 rr19, 22

Federal Court Rules Second Schedule, Item 41

Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621, applied.

Magna Alloys & Research Pty Ltd v Coffee (No 2) [1982] VR 97, applied.

Pacific Dunlop Ltd v Australian Rubber Gloves unreported, Federal Court, 17 August 1993, applied.

Re Gibson's Settlement Trusts, Mellors v Gibson [1981] 1 All ER 233, applied.

Neil v Nott (1994) 121 ALR 148, applied.

Schweppes' Ltd v Archer (1934) 34 SR(NSW) 178, applied.

Stanley v Phillips (1966) 115 CLR 470, applied.

JOZEF TITAN v TOMISLAV BABIC (First Respondent) JOHN WILLIAM KELLY (Second Respondent) and NRMA INSURANCE LIMITED (Third Respondent)
No ACT G31 of 1992

FINN J
CANBERRA
11 OCTOBER 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )    No. ACT G31 of 1992   DISTRICT REGISTRY               )
  )
GENERAL DIVISION                 )

BETWEEN: JOZEF TITAN

Applicant

AND: TOMISLAV BABIC

First Respondent

AND: JOHN WILLIAM KELLY

Second Respondent

AND: NRMA INSURANCE LIMITED

Third Respondent

COURT: FINN J.

PLACE: CANBERRA

DATE: 11 OCTOBER 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

the certificate of the taxing officer be set aside.

the taxing officer is directed -

(i)to tax the bill of costs on the basis that objection to the engagement of senior counsel should be allowed; and

(ii)to reconsider the allowance to be made for general care and conduct and to provide the appellant in his certificate or some other document, his reasons for decision on that reconsideration.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )    No. ACT G31 of 1992   DISTRICT REGISTRY               )
  )
GENERAL DIVISION                 )

BETWEEN: JOZEF TITAN

Applicant

AND: TOMISLAV BABIC

First Respondent

AND: JOHN WILLIAM KELLY

Second Respondent

AND: NRMA INSURANCE LIMITED

Third Respondent

COURT: FINN J.

PLACE: CANBERRA

DATE: 11 OCTOBER 1995

REASONS FOR JUDGMENT

This is a motion under the Federal Court Rules O62 r44 for review of the decision of the taxing officer, a certificate having been given by him pursuant to O62 r43.

The circumstances from which this motion emerges need to be stated, albeit relatively briefly. The appellant, Mr Titan, was plaintiff in an action for damages for personal injuries…

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.

Continue reading Titan v Babic

Details

AGLC: Titan v Babic [1995] FCA 813
Case: [1995] FCA 813
Decision Date: 11 OCTOBER 1995

CaseChat Overview and Summary

This appeal concerns the costs of an unsuccessful appeal from the Full Court of the Supreme Court of the Australian Capital Territory. The appellant, Mr Titan, had commenced an action for damages for personal injuries against the first respondent, Mr Babic, in the Supreme Court of the Australian Capital Territory. He obtained an interlocutory judgment in default of defence in 1984, and damages were assessed by the Master of the Supreme Court in 1991. Mr Titan appealed from this judgment to the Full Court of the Supreme Court, and subsequently to the Full Court of this Court. He was ordered to pay the respondents' costs of the appeal. The motion before the court was for a review of the decision of the taxing officer pursuant to Federal Court Rules O62 r44. The objections made by Mr Titan to items of the bill of costs fell under three general headings: the employment of senior counsel; the inclusion of a certain document in the Appeal Book; and the allowance of 15 per cent on the bill for "General Care and Conduct". The taxing officer rejected all of the objections made by Mr Titan. The court held that the objection to the engagement of senior counsel should be allowed, and that insufficient reasons had been given by the taxing officer to justify his disallowance of the appellant's objection to the 15 per cent allowance for general care and conduct. The court ordered that the certificate of the taxing officer be set aside, and directed the taxing officer to tax the bill of costs on the basis that the objection to the engagement of senior counsel should be allowed, and to reconsider the allowance to be made for general care and conduct and to provide the appellant in his certificate or some other document, his reasons for decision on that reconsideration.

Orders