Triscott v Gibbs

[1992] QCA 54

IN THE COURT OF APPEAL	[1992] QCA 054
SUPREME COURT OF QUEENSLAND	O.S. No. 511 of 1991
BETWEEN:

PAUL ANTHONY TRISCOTT

(Applicant) Respondent

AND:

ALAN HARRY GIBBS

(Respondent) Appellant

In the Court of Appeal

Mr Justice McPherson
Mr Justice Davies

Mr Justice Shepherdson

JUDGMENT OF THE COURT

Delivered the 7th day of April 1992

MINUTE OF ORDER:	Appeal dismissed with costs to be taxed
CATCHWORDS:	COSTS - APPEAL - from order that sum paid into court by appellant be paid out to respondent/solicitor following taxation of bill and subsequent demand by respondent - whether judge's discretion miscarried - whether appellant seeking to relitigate his liability for costs
Counsel:	Appellant in person P.C. Stephens for the Respondent
Solicitors:	Bruce S. Dulley, Town Agent for Paul Triscott, for the Respondent
Hearing date(s):	16 March 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	O.S. No. 511 of 1991
BETWEEN:

PAUL ANTHONY TRISCOTT

(Applicant) Respondent

AND:

ALAN HARRY GIBBS

(Respondent) Appellant

__________________________________________________

MCPHERSON JA
DAVIES JA

SHEPHERDSON J

__________________________________________________

Reasons of the Court delivered the 7th day of

April 1992

__________________________________________________

"APPEAL DISMISSED WITH COSTS TO BE TAXED."

This is an appeal from an order of Derrington J. made on 26 November 1991 in which His Honour ordered that the sum of $2,000 paid into court by the appellant pursuant to an order of de Jersey J., be paid out to the respondent. The appellant, who appeared before us in person, sought orders which, in these proceedings, this Court cannot make. The limited ambit of the appeal to this Court, and consequently of the orders which may be made on this appeal, is shown by the following facts.

1. On 5 June 1991 de Jersey J., pursuant to s. 25 of the
Costs Act of 1867, ordered that a bill of costs of the
respondent, who had been the appellant's solicitor, be
referred to the Taxing Officer of this Court to be
taxed. He imposed upon the appellant as a condition of
that order that he pay the sum of $2,000 into court to
abide the outcome of the taxation. The appellant did
not appeal against that condition and duly paid that
sum into court.

2.    The bill of costs was taxed by the Taxing Officer who, by his certificate dated 8 November 1991, certified that the amount payable by the appellant to the respondent was $6,675.46. It is common ground that, notwithstanding demand, that amount remains unpaid.

3.    An application by the appellant to review that taxation was dismissed by Moynihan J. on 11 November 1991. The appellant did not appeal against that order dismissing the application for review.

However, the appellant now seeks to agitate before us
questions concerning his liability to pay the sum certified
by the Taxing Officer to be due. That question was argued
no doubt on the proceeding before the Taxing Officer and, on
the review of the Taxing Officer's certificate, before
Moynihan J. It could not have been re-litigated before
Derrington J. and consequently cannot be litigated before us
on appeal from his decision. These are separate proceedings
in which, all rights of appeal against the Taxing Officer's
certificate having been exhausted, we must accept its
correctness. The only question before Derrington J. was
whether, accepting as he was bound to do the correctness of
the Taxing Officer's certificate, the amount of $2,000 paid
in by the appellant should be paid out to the respondent.
And the only question properly before this Court is whether
his Honour erred in exercising his discretion to make the
order which he did. It was not open to his Honour, and it
is not open to us, to investigate the circumstances that led
to the order made by de Jersey J.; or the order refusing to
review the taxation; or the action said to have been brought
in the District Court at Toowoomba that gave rise to the
bill of costs the subject of the certificate; or any
allegations of professional negligence that have been made
by the appellant against the respondent in relation to that
action. On the facts before Derrington J., by which we are
bound, we do not think that his Honour erred in exercising
his discretion to make the order which he did.
The appeal must be dismissed with costs to be taxed.