Tomasevic v Nowicki Carbone & Anor
[2016] VSC 501
•29 AUGUST 2016
| 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 that if he received a payment in his legal action that was equal to or greater than the amount expended by the Union, he would reimburse the Union at its request.
The defendants acted for the plaintiff for approximately two years until 27 March 2013. During this period, the defendants briefed different counsel for the plaintiff on a number of interlocutory hearings.
In about October 2013, Melbourne Injury Lawyers (‘MIL’) commenced acting for the plaintiff. On 25 February 2014, MIL wrote to the Union, requesting access to funds. On 19 March 2014, the Union responded to MIL stating, among other things, that it would not provide further funding as the Branch Secretary had already authorised payments totalling in excess of $25,000. The Union stated that it had no intention of continuing to assist the plaintiff in his litigation.
The plaintiff has previously told the court that he first learned from a letter from the Union to MIL, forwarded to the plaintiff on 27 March 2014, that legal costs had been paid by the Union on his behalf. Up to that point, he believed that as the defendants were acting on a ‘no win/no fee’ basis, they had covered all costs incurred in progressing his proceeding, including barristers’ fees.[2]
[2]In the circumstances, this proposition seems improbable, but it is unnecessary to make a finding about it or set out the evidentiary basis for rejecting the plaintiff’s contention.
On 10 October 2014 the plaintiff filed a summons for taxation out of time. In June 2015, Emerton J extended the time within which he could seek a review of the defendants bill.[3] On 11 August 2015, the plaintiff filed a notice of objections in the Costs Court. The legal costs that the plaintiff sought to review were disbursements for barristers’ fees invoiced to the defendants, and totalling $25,020, which were paid directly by the Union to the barristers on various dates between February and May 2012. The barristers’ fees related principally to defending an application made by the State of Victoria (as defendant in the common law proceeding) to strike out part of the plaintiff’s pleadings, and included an appeal from the primary decision of an associate judge. The strike out appears to have been directed at a claim made under whistleblower’s protection legislation, which was later abandoned.
[3]Tomasevic v Nowicki Carbone [2015] VSC 302.
The taxation was heard before Wood AsJ on 7 September 2015, who dismissed the plaintiff’s summons. Wood AsJ delivered written reasons on 5 November 2015 that explained his conclusion that the plaintiff’s liability for the defendants costs was effectively ‘nil’. On 4 December 2015 the plaintiff filed the notice of appeal against this order that is the subject of the present hearing.
Threshold issue - Competency of appeal
Parties submissions
The defendants submitted that the plaintiff’s appeal was prima facie incompetent and ought to be dismissed on the basis that r 63.56.1(1) provides that if any interested party objects to an order of the Costs Court constituted by a costs judge that party may apply to that costs judge to reconsider that order. The cost judge’s resulting reconsideration will, in certain circumstances, require further written reasons from the costs judge.[4] The costs judge’s written reasons on the reconsideration are a prerequisite for any review by a judge of this Court.[5]
[4]As to which see r 63.56.1(7).
[5]See r 63.57(2).
The defendants submitted that, in summary:
(a) The plaintiff had not sought reconsideration of Wood AsJ’s order dated 19 November 2015 pursuant to r 63.56.1(1);
(b) The costs judge had not given written reasons for the purpose of r 63.56.1(7); and hence
(c) A pre-condition for a taxation being appealed to a judge of this Court had not been met.
Accordingly, the appeal cannot proceed and ought be dismissed.
This outcome was said to reflect the approach taken by Cavanough J in Galbally & O’Brien Lawyers v Awadallah,[6] in dismissing as incompetent, by the Court’s own motion, a purported appeal where no application for reconsideration had been made pursuant to r 63.56.1.
[6]Practice court order made on 25 May 2015 in which his Honour’s reasons are briefly noted in ‘Other Matters’. The text of the order is recorded in Cameron J’s subsequent decision in the same proceeding: Galbally & O’Brien Lawyers v Awadallah [2016] VSC 68, [16].
The plaintiff submitted that his appeal was properly instituted pursuant to Order 77 of the Rules to this court from a decision of an associate judge by way of rehearing.[7] He submitted that the path of appeal from Wood AsJ’s decision was not by way of a reconsideration by the costs judge followed by a review by a judge because Wood AsJ, while effectively finding that the applicant’s liability to the defendants was and is ‘nil’, did not engage in a review of the costs on an itemised basis as contemplated by r 63.56.1. Rather, having found that the plaintiff did not and could not have any liability to the defendants in the arrangements outlined above, Wood AsJ had no occasion to review the barrister’s invoices. Wood AsJ dismissed the summons as the plaintiff could not do better on a review in the Costs Court of those fees because he had no liability to pay anything to anyone.
[7]Relying on Hou v Westpac Banking Corporation [2015] VSCA 57.
Analysis
The dispute between the parties on this threshold issue requires an examination of the circumstances in which r 63.56.1 applies. The rule relevantly provides as follows:
Reconsideration of order of Costs Judge
(1)If any party interested objects to an order of the Costs Court constituted by a Costs Judge –
(a)allowing or disallowing, wholly or in part, any item on a bill; or
(b)allowing some amount in respect of any item –
the Costs Court constituted by that Costs Judge, on the application of that party, may reconsider the order.
(2) An application under paragraph (1) shall be made by notice.
(3) The notice under paragraph (2) shall –
(a)state by a list each item in the bill in respect of which the party objects to the order of the Costs Court constituted by a Costs Judge; and
(b)state specifically and concisely the grounds of objection to that order and the order sought in its place.
…
(7)The Costs Court constituted by a Costs Judge may, and if required by any party within seven days after the order is made under paragraph (5) shall, give written reasons for the decision in respect of any item in the bill to which objection was taken in the notice.
It is instructive to recall the history of this rule. In Wightman v Johnston,[8] Phillips JA, when discussing the absence of formal reasons as a ground of appeal in relation to a trial judge’s order in respect of costs that fixed counsel’s fees in a personal injuries case, stated:
But just as the court is the more reluctant to interfere, so, it might sometimes be said, is the need for reasons the greater, a need which is perhaps reflected in the specific requirement of the rules in this court that the taxing master give reasons on a review of taxation: r 63.56.1(7) (formerly r 63.57(6)) and in England, RSC 1965 O 62, r 34(4), as to which see In re Gibson's Settlement Trust [1981] 1 Ch 179 at 191-192 per Megarry VC, a passage which I had occasion to adopt in Re National Safety Council (No 2) [1992] 1 VR 485 at 495.
[8][1995] 2 VR 637, 641.
Megarry VC in In re Gibson's Settlement Trust[9] said:
Before I turn to my conclusions on this review, however, duty compels me to deal with one further matter. RSC 1965 O 62, r 34(4), requires a taxing officer who has reviewed a taxation to state, on request, “the reasons for his decision on the review, and any special facts or circumstances relevant to it.” The duty to give reasons is plainly most important. The reasons are needed initially to enable the unsuccessful party to decide whether to carry matters further. If he does bring the taxation before a judge for review, the reasons are needed to enable the parties to know what propositions they have to attack or defend, and also to enable the judge to understand why the taxing officer did what he did. All this, of course, is obvious.
[9][1981] 1 Ch 179, 191-192.
The defendants placed emphasis on his Honour’s finding that ‘the applicant’s liability for [the invoices] was and is nil’. Wood AsJ made clear his reasons for that finding were not founded on an item review:[10]
In summary, section 3.4.31(3) does not assist the applicant’s argument that the invoices be reduced to ‘nil’ or to even review them. In theory counsel fees under the Agreement were a disbursement liable to be paid by the Union or the applicant, irrespective of the outcome of the substantive proceedings or the validity of the Agreement. In other words, on either scenario they are entitled to be paid. If the Agreement was valid they were payable as a disbursement and not part of the ‘no win no fee’ scenario. If the Agreement was void they were potentially payable by the applicant or the Union as a third party payer. However the breach referred to in paragraph 33 above means the applicant was not liable for these counsel fees and the terms of the deed mean the Union was. The applicant’s liability for them was and is ‘nil’. Further, the Union has provided a letter to the applicant dated 20 February 2015 stating they will not seek reimbursement of the sums paid to counsel. There is therefore no future liability either.
[10]Reasons, Wood AsJ, [34].
It is clear from his reasons that Wood AsJ made no findings regarding particular counsel’s fees based on a review of relevant invoices. His Honour’s conclusion about the plaintiff’s liability - that he had no current or future liability to the defendants - was not drawn from review of any individual fee slip from counsel. In theory, his Honour’s order might have been infected with error, a question that I will shortly consider, but it was not based on any consideration of a kind contemplated by r 63.56.1(1).
Rule 63.56 applies to situations where a costs judge has reviewed an itemised bill and made decisions regarding particular items therein, from which an aggrieved party seeks to appeal. The rule speaks of decisions by the costs judge to allow or disallow an item on a bill or allowing an amount in respect of an item. Not all Costs Court orders will fall within the scope of r 63.56. Where there is no ruling directed at any item in a bill or the quantum of it, but rather, as in this case, a ruling on an antecedent question of standing to tax the bill, the issue of reconsideration by the Costs Court neither arises under the rule nor is required as a matter of principle. Rule 63.56 has no application. As an order of an associate judge, the ruling will be amenable to an appeal under O 77.
If considered necessary, failure to comply with r 63.56.1 would be an irregularity that did not render a step taken in the proceeding a nullity, namely the appeal to a judge of the court. Under r 2.04, the court may dispense with compliance with any requirement under the Rules, either before or after the occasion for compliance arises. If the present circumstances required that the appeal against the associate judge’s ruling be properly brought under r 63.57, there would be grounds for dispensing with the requirement for reconsideration by the costs judge as a prerequisite. I have identified the purpose of that provision to be to ensure that detailed reasons are provided where a challenged item has been allowed, disallowed, or varied as to quantum in the first instance without elaboration. Wood AsJ provided comprehensive reasons for concluding that the plaintiff effectively owes ‘nil’ to the defendants. No purpose would be served in sending the taxation back for reconsideration and that course would be inconsistent with the court’s role in achieving the overarching purpose in civil litigation. The associate judge would inevitably respond that a sufficiently detailed path of reasoning for his findings has already been provided.
Consideration of appeal - Substantive analysis
Parties submissions
The plaintiff relied on numerous grounds in his Notice of Appeal to submit that error was apparent in Wood AsJ’s reasons. Mr Clarke of counsel, who appeared under the Victorian Bar’s pro bono scheme to assist the plaintiff, narrowed those grounds to five main issues. In summary, the plaintiff submitted that the associate judge had fallen into error in the following ways:
(a) The plaintiff was not liable for counsel’s fees due to the defendants breach of the Deed (referable to a failure to disclose).[11] This was said to be inconsistent with his Honour’s previous finding that the plaintiff had standing to review the costs charged.
[11]Reasons, Wood AsJ, [34].
(b) The plaintiff attacked the finding that his liability for costs under the Deed was and is ‘nil’; and that there was no possibility of future liability on the basis of the Union’s written confirmation that it will not seek reimbursement of the sums already paid to counsel. The plaintiff submitted that the fact that counsel had been paid was irrelevant to the ultimate question of where liability for these disbursements would lie. Had counsel in fact not been paid, they could pursue the defendant firm or the plaintiff for payment as the parties with whom counsel had a contractual relationship. Counsel had no such relationship with the Union.
(c) Section 1.2.1 of the Legal Profession Act defines legal costs as being the costs the applicant is liable for or may become liable for, however, Wood AsJ found that the plaintiff was never liable for and will never be liable for these costs.[12]
(d) There was no basis to exercise the discretion to reduce legal costs pursuant to s 3.4.17(4) of the Legal Profession Act, as the invoices were not paid by the plaintiff.[13]
(e) No reduction or refund would go to the plaintiff and the plaintiff is not liable for costs.[14]
[12]Reasons, Wood AsJ, [35].
[13]Reasons, Wood AsJ, [36].
[14]Reasons, Wood AsJ, [36].
The plaintiff contended that the appeal should be allowed and the matter remitted to the Costs Court to review the barristers’ fees, with a direction that the Costs Court:
(a) consider, in conducting a review –
(i) whether or not it was reasonable to carry out the work to which the legal costs related;
(ii) whether or not the work was carried out in a reasonable matter;
(iii) the fairness and reasonableness of the amount of legal costs in relation to the work –
in accordance with s 3.4.44(1) of the Act; and
(b) consider whether legal costs should be reduced for the failure to comply with disclosure under the Act pursuant to s 3.4.17(4),[15] having regard to the seriousness of the non-compliance.
[15]Wood AsJ found that the defendants had failed as they had agreed to provide a statement setting out the details of the fees ‘before incurring the expense’ (Reasons, Wood AsJ, [33]). The engagement of counsel was in breach of this agreement.
It was uncontroversial that the Union paid the various barristers directly. The plaintiff accepted that the defendants never received any payment whatsoever from him, nor from the Union on his behalf. None of the barristers nor the Union are parties to this proceeding or to any part of the taxation. The defendants submitted that it follows that any order pursuant to s 3.4.31(3) of the Legal Profession Act 2004 that the defendants repay to the plaintiff any amount (whether excess or otherwise) would be nonsensical as the defendants received nothing that they could repay.
Analysis
The task for the applicant on an appeal to a judge from an associate judge pursuant to O 77 is well established. In Oswal v Carson, Ferguson J (as her Honour then was) stated:[16]
[Appeals from Associate Judges under r 77] are no longer by way of rehearing de novo. Instead, they are rehearings which, in the absence of further evidence or a change in the law, ordinarily require the appellant to show error on the part of the Associate Judge before appellate power may be exercised.
[16][2013] VSC 355, [11]; citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203 [14] (Gleeson CJ, Gaudron and Hayne JJ).
The plaintiff must establish that Wood AsJ’s decision is attended by legal, factual or discretionary error.[17] In the absence of strong reasons, such as an error of principle in the exercise of discretion, a consideration of irrelevant matters or other manifest mistake, an appellate court will not interfere with the exercise of discretion.[18]
[17]AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSC 37, [118] (McDonald J), affirmed on appeal in AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSCA 227.
[18]Spotless Group Ltd v Premier Building and Consulting Pty Ltd and North Suburban Properties Pty Ltd [2008] VSCA 115, [10]-[11]. See also AG Blondell & Associates Pty Ltd v Ilouri Nominees Pty Ltd [2008] VSC 358. [15]; Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd [2013] VSC 92, [29]; and Oswal v Carson [2013] VSC 355.
The Costs Court is limited in what it is able to assess on a taxation. The only costs that became payable in this matter, and were amenable to review, were the invoices rendered by the barristers. It was not in issue that the plaintiff had standing to ask for a review of the barrister’s fees even though they had been paid by a third party (the Union). The defendants had not, and would not, charge the plaintiff any professional costs by reason of the Deed. There were no fees rendered by the defendants that could have been subject to taxation.
If the barristers’ fees were to be remitted to the Costs Court with a directive that the invoices themselves be reviewed on a line-by-line basis, there are three questions that would need to be resolved:
(a) Was it reasonable for the barristers to have carried out the work?
(b) Was the work carried out by the barristers in a reasonable manner?
(c) Were the costs charged by the barristers in relation to the work fair and reasonable in amount?
The plaintiff acknowledged that once retained by the defendant solicitors, it had been reasonable for them to do the work, and no suggestion was made that they had not carried out the work in a reasonable manner. Neither was any specific criticism directed towards the amount charged. Thus, none of those questions would be in issue.
The plaintiff sought an order that the defendants pay money assessed at the full sum of $25,020, or some lesser amount, either to him personally, or to the Union on the basis that the money had been spent on what he described as wasted and unauthorised costs. The plaintiff contended that the solicitors, rather than the barristers, were at fault for this waste.
I reject the plaintiff’s submission that this claim to be compensated for the fault of the defendants that allegedly caused the loss to the plaintiff of the ‘fighting fund’ provided by the Union was properly a question for the Costs Court. The costs judge did not fall into the error of construing his task to be to award compensation against the defendants under the guise of ordering repayment of a disbursement that could have been included in a solicitor’s bill for taxation.
The Costs Court is not the appropriate forum for recovery from the defendants of damages, assessed by reference to the barristers’ fees paid by the Union, as a loss occasioned by an alleged negligent discharge of the solicitor’s duty to the plaintiff. So much is made clear in Abrahams v Wainwright Ryan[19] in which the Court of Appeal stated that an aggrieved client must pursue any negligence claim he might have against his former solicitors in an independent action rather than in a taxation. As the Court explained, that does not mean that in every case where costs are found to have been attributable to a ‘waste’ or negligence, such costs may be disallowed on a taxation.
[19][1999] 1 VR 102.
The plaintiff relied on the following passage in Abrahams v Wainwright Ryan, where Brooking JA (Winneke P and Phillips JJA agreeing) said:[20]
Quite apart from negligence, it is a principle of law – or perhaps one should say a consequence of the application of a principle of law – that a solicitor may not recover from the client payment for work that is useless. The decision cited as establishing the rule with regard to solicitors is Hill v Featherstonhaugh … The Court treated the rule about attorneys as flowing from a more general principle which prevented a bricklayer from charging for a wall which was liable to collapse or a surgeon for an operation which could not in any circumstances have been useful to the patient.
[20]Ibid, 116 [41] (citations omitted).
The plaintiff invited me to distinguish Abrahams on its facts, as the present matter did not involve something akin to the veritable ‘potpourri’ of negligence allegations described in that case.[21] Rather, he submitted this taxation involved discrete amounts directly and clearly attributable to a solicitor’s negligence in procuring work that was effectively useless to the client, namely pleading and then defending on a pleading summons a cause of action that lacked a proper basis. Implicit in this submission was the proposition that the want of utility in the solicitor’s work was established by the decision of the court, affirmed on appeal, to strike out the claim, followed by the solicitor’s advice to abandon further pursuit of it.
[21]Ibid, 118-119 [46].
I disagree that Abrahams can be distinguished on this basis. The basis for a finding that the fees charged by counsel were for useless work is absent. Contested issues of fact would inevitably arise if that allegation was pursued against the defendants. That is not to say that there may not be occasions during a taxation when the conclusion that work, or an item of work, was useless could readily, and appropriately be reached. But the conclusion that because a particular claim has been struck out or abandoned at a preliminary stage of a proceeding, there were no reasonable grounds for making that claim in the first place would not be open to the Costs Court in the present circumstances.
The material before the Costs Court suggested that the plaintiff may have maintained instructions to the defendants to pursue the whistleblower protection claim despite advice to the contrary. The letter from the defendants to the plaintiff dated 22 March 2013, which notified him that they were ceasing to act on his behalf, stated:
We have received Counsel’s advice … that there is no proper basis on the material at hand, to continue to maintain the Whistleblower’s Protection Act part of your pleadings, nor can we particularise these pleadings with supporting documentation.
…
We confirm despite advice that the Whistleblower’s Protection Act part of your case is untenable, that you continue to instruct us to maintain such pleadings, in contravention of our overarching obligation to the Court and the fact we have no proper basis for such pleadings.
The circumstances of the pleading of the whistleblower protection claim and the strike out could not be fully exposed on a taxation in a manner that would permit a conclusion that the expenditure of the Union’s fighting fund was wasted. Such a claim requires separate proceedings by writ. More to the point, a claim for damages for negligence is not appropriate for a taxation. The Costs Court’s duty is to fix or assess an amount for costs at the conclusion of the taxation of a bill of costs. It has no power to award compensation or damages. As no costs were claimed by the defendants, no amount could be disallowed as a useless expenditure.
No error on the part of the costs judge has been demonstrated.
Earlier in the proceeding when extending time for the plaintiff to apply to the Costs Court, Emerton J commented on the apparent futility of the plaintiff’s proposed application:[22]
The applicant expressed only a half-hearted desire to challenge the quantum of the barristers’ fees in question. When pressed on the issue of quantum he made some noises to the effect that the barristers did nothing for him (they apparently failed to successfully resist the strike-out application), and that he did not know how they could have charged so much. The applicant’s real complaint is that Nowicki Carbone wrongfully requested (or directed) the Union to pay the barristers’ fees when, so he contends, those funds were to be quarantined so that they would remain available for the trial of his proceeding. The applicant contends that Nowicki Carbone should have covered the disbursements itself and/or arranged for pro bono counsel to appear for him, in accordance with the ‘no win/no fee’ arrangement that had been agreed.
Apart from the brief grumble I have mentioned, the applicant did not contend that the barristers’ fees were unduly large or unreasonable, or that the matters in which the barristers were briefed did not warrant the briefing of counsel. However that is precisely what the Costs Court will consider on the summons for taxation.
…
The Costs Court has a limited jurisdiction and carries out a limited function in reviewing legal costs pursuant to a summons for review. In this case, the Costs Court will consider whether the barristers’ fees were fair and reasonable as to the amounts invoiced (and paid) and whether it was reasonable for Nowicki Carbone to have retained counsel to perform the type of work in question. Whether Nowicki Carbone breached some kind of agreement with the applicant concerning the use of the Union funds is a different matter altogether. That is not a question that the Costs Court can or should resolve. It is a matter for a separate proceeding.
…
It therefore appears to me to be highly unlikely that the applicant will achieve on a summons for costs review in the Costs Court what he seeks to achieve, which is to have Nowicki Carbone repay the $25,020 to the Union so that funds become available through the Union to enable a new firm of solicitors to conduct his litigation.
[22][2015] VSC 302, [22]-[27].
It is regrettable that the plaintiff did not heed this warning. The plaintiff is clearly aggrieved that the money he had hoped would be available for a trial of his negligence claim is no longer available for that purpose. The futility of his continued agitation of these issues in the forum of the Costs Court could not be avoided by the efforts of counsel appearing pro bono.
Conclusion
The plaintiff’s appeal will be dismissed. I will hear from the parties as to costs.
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