Tomasevic v Nowicki Carbone & Anor - [2016] VSC 501

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 05502

MILAN TOMASEVIC	Plaintiff
v
NOWICKI CARBONE	First Defendant
and
JOHN KARANTZIS	Second Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 AUGUST 2016
DATE OF JUDGMENT:	29 AUGUST 2016
CASE MAY BE CITED AS:	TOMASEVIC V NOWICKI CARBONE & ANOR
MEDIUM NEUTRAL CITATION:	[2016] VSC 501

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COSTS – Appeal from Costs Court – Client seeking taxation of barristers’ fees paid by third party providing a fighting fund – Plaintiff’s liability to solicitors assessed as ‘nil’ – Whether costs ‘wasted’ by solicitors in engaging barristers – Whether Costs Court could order payment by solicitors of fees paid to barristers on basis of conduct of solicitors – Plaintiff’s claim effectively for damages for negligence not disallowance of costs item that was useless – No error in reasoning – Legal Profession Act 2004, ss 1.2.1, 3.4.17, 3.4.31.

PRACTICE AND PROCEDURE – Appeal against decision of an associate judge sitting as the Costs Judge on a taxation – Whether reconsideration of the taxation a prerequisite to an appeal – No findings made regarding any item on a bill – Appropriate to bring appeal under O 77 – Supreme Court (General Civil Procedure) Rules 2005, r 63.56, 63.57, O 77.06.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Clarke	Victorian Bar Pro Bono Scheme
For the Defendants	Mr P Duggan	Nowicki Carbone

HIS HONOUR:

The plaintiff appealed an unfavourable decision of an associate judge sitting in the Costs Court on a taxation of a bill comprised of barristers fees paid by a third party.[1] An order on taxation made by the Costs Court may come before a judge in the Trial Division either by an appeal under O 77 of the Supreme Court (General Civil Procedure) Rules 2005 or by review under r 63.57. The defendants took a preliminary issue that the appeal was a review of an order of the Costs Court brought under r 63.57 and was incompetent for want of a reconsideration by a costs judge under r 63.56(1).
[1] Tomasevic v Nowicki Carbone and Anor (Unreported, Supreme Court of Victoria, Wood AsJ, 5 November 2015) (‘Reasons, Wood AsJ’).

For the reasons that follow, the defendants’ preliminary point fails and the plaintiff’s appeal will be dismissed.

Background

On 4 March 2010, the plaintiff initiated a common law proceeding seeking damages for psychological injury due to bullying, intimidation, victimisation and harassment at the school at which he had worked as a teacher between 1999 and 2004. He was initially represented by another firm, with the defendant firm taking over the conduct of his claim in February 2011.

On 11 March 2011, the plaintiff agreed with the Victorian branch of the Australian Education Union (the ‘Union’) that the Union would pay his legal expenses and costs up to $30,000 or such higher amount as was determined by the Union at its discretion. The plaintiff agreed…

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: [2016] VSC 501
Decision Date: 29 AUGUST 2016

CaseChat Overview and Summary

The plaintiff, Tomasevic, appealed against the decision of the Costs Court in relation to the taxation of legal costs incurred during the course of litigation. The plaintiff sought to have the Costs Court order the defendant, Nowicki Carbone, to pay the fees of barristers who were engaged by a third party, which provided a fighting fund. The plaintiff’s liability for the costs was assessed as nil. The plaintiff argued that the costs incurred were wasted by the solicitors, Nowicki Carbone, in engaging the barristers. The plaintiff further contended that the Costs Court had the authority to order the solicitors to pay the fees of the barristers due to the conduct of the solicitors. The plaintiff’s claim was effectively one for damages for negligence, rather than a disallowance of a costs item that was useless.

The legal issues before the court were whether the Costs Court could order the solicitors to pay the fees of the barristers and whether the reconsideration of the taxation was a prerequisite to the appeal. The court noted that no findings were made regarding any item on the bill of costs, and therefore, it was appropriate to bring the appeal under the relevant rule of the Supreme Court (General Civil Procedure) Rules 2005.

The court found no error in the reasoning of the Costs Court. It held that the plaintiff’s claim was one for damages for negligence, rather than a disallowance of a costs item that was useless. The court further held that the Legal Profession Act 2004 did not confer on the Costs Court the authority to order the solicitors to pay the fees of the barristers. The court also held that the reconsideration of the taxation was not a prerequisite to the appeal as no findings were made regarding any item on the bill of costs.

The court dismissed the appeal and affirmed the decision of the Costs Court. The plaintiff was ordered to pay the costs of the appeal.

Orders