Valassis v M.D. Nikolaidis & Co

[1998] HCATrans 44

Office of the Registry
  Sydney  No S56 of 1996

B e t w e e n -

DENNIS VALASSIS

Applicant

and

M.D. NIKOLAIDIS & CO.,
Solicitors

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 2.18 AM

Copyright in the High Court of Australia

MR D VALASSIS appeared in person.

HAYNE J:   I have a certificate from the Registrar stating that he has been informed that the respondent does not wish to be represented at the hearing of the application and will submit to any order of the Court save as to costs.  Yes, Mr Valassis.

MR VALASSIS:   This proceedings, your Honour, start from 1988 and was to tax a bill, $12,000.   I have to say in short, this matter been before the registry in Court of Appeal to tax this particular bill.  The registry all the way along never follow the law, your Honour, because under the law the respondent should lodge the bills on 21 days which he never did.  He succeed all the way long to be appearance into the court, myself, 35 days.  The respondent he never appear more than five or six days.  He never take any notice from the court orders.

Further to the application for special leave to appeal, I have applicant list of authorities documents, your Honour, which page 1 to page 6 is the bills of costs.  Now, in page 7 I ask the respondent to prepare the bills and he say, “I want $50 for each matter.”  Now, he prepare the time sheets which start, your Honour, from 9 page to 13 page.  Now, if you go to No 8 page, I refuse this particular time sheet, your Honour.

Now, at the time.....1990 - took two years to lodge this particular document.  He did inform the registrar.  He never have the files to prepare proper bills of costs.  Further to this, your Honour, we have affidavits from the respondent, page 20, paragraph 7, he did say on his affidavits:

I further say that all files, subject of the order of this Honourable Court referred to herein, were delivered by myself to the Court at a time of my appearances on the taxation of costs in 1990.

Which mean this particular affidavit, your Honour, is incorrect.

Now, next to this, your Honour, we are going to page 18.  I write a letter to the registry if the respondent have been lodge any documents and the registry replied to me the same day, 23 April 1993.  We never have any documents.

Now, if we go to page 21, your Honour, please, the last paragraphs we have been before to the court and I did ask the defendant a question there - respondent a question:

At the time when you lodged the break-down details you did have the files?
A.  Yes we did.

Please, page 21. And I ask twice in case he confuse:

At the time when you lodged with the Court, the break-down details you did have the files?
A.  Yes, we did.

He did have the files but he never lodge break-down details proper in taxable form because the bills which he given to me, some of this bill, your Honour, the time which he spent is only to prepare the bill.

HAYNE J:   Eventually, an itemised bill was prepared, was it not?

MR VALASSIS:   Yes.

HAYNE J:   And that bill appears at page 33 and following, is that right?  The itemised bill is at page 33 of these documents, is that right?

MR VALASSIS:   No, no, this bill is new.  The bill which he give it to me now, your Honour.

HAYNE J:   Yes.

MR VALASSIS:   The bill which was the dispute between the parties was only 1 page to 6 page, your Honour.  The last bill is the bill which had been given to me now.  We have so far, your Honour, the respondent he fill up affidavits incorrect.  In 1990, he did say “I don’t have the files.  I can’t prepare in taxable form”.  He give evidence before the court and he say, “1990 when I lodge the time sheets I did have the files.”

Now, one particular bill - I.....to one particular bill only, your Honour.  I do not want to waste too much time.  Page 4, your Honour, he did say $1000 expenses to reinstate a hearing on 6 April.  This particular bill, your Honour, the time which he spent is to prepare the bill.  Was no hearing on 6 April.  Well, the evidence which I have in front of me and I can prove is - - -

HAYNE J:   Mr Valassis, this is not an occasion to go into what you see is the merits of the case.  The question is, is there an error in the Court of Appeal which this Court should reconsider.

MR VALASSIS:   Yes.  Your Honour, I try to repeat things which is not in the appeal book and I.....now into the proceedings.  This proceedings come into the second taxing officer.  The first day we went to taxing officer I withdraw on myself because he did not follow the law.  I lodge notice of motion to report to a Master and the registry of the Court of Appeal, they never put my affidavit before the court, your Honour, and the court order to go back to the taxing officer to tax the bill.

Now, please, your Honour, I want to say something.  I did have plenty time to prepare this particular book.  I am talking about applicant’s list for authorities.  But what I want to say to the Court, please, after all this particular time I had been missing to included how the taxing officer taxed the bills and is in here if I have your permission to give you, your Honour, how the taxing officer he tax the bills, and my apology, which I never included this.  This, your Honour - - -

HAYNE J:   Yes, well, let us look at the document at least.

MR VALASSIS:   Thank you.  This, your Honour, prove how set I was to prepare this document which I did miss it the most important.  Now, we start from No 1, your Honour.  He say - - -

CALLINAN J:   Mr Valassis, we cannot go into this.  We cannot go into the detail of the bill.  You need to show us where some important error of principle or law has occurred.

MR VALASSIS:   Yes.  My next step is the errors of law to point out, your Honour, which I am sure you are familiar with all this if you have been read my - - -

HAYNE J:   We have read the books, Mr Valassis.  Can you tell us, in summary, your best point of law which you say arises in this application?

MR VALASSIS:   We have all the points of law which, I suppose, I do not have to.....to all this, the explanation it, more than 2 hours, is the draft notice of appeal which I do say from the second page l(a) to continue, page 3, (h) - (i) is - all this is the points of law which I want the Court to give me the opportunity to prove the lower court never follow all this particulars laws which is not one or two, is nearly - more than a dozen, which they show the Legal Practice Act, on 21, what they say which I have in here but I suppose we do not have to.....but I have all this and before the lower court I did have available to the court, and liability of the solicitor; principles and practice of costs; minimum units, and all these points of law which I set down, your Honour, if we going through to this I can prove the court never followed the law in this particular matter.

Then I want the opportunity to give me the court to prove this matter should be - leave to appeal should be granted.  I have been to the court for 35 days.  The respondent never follow - respect the law.  I suppose I can point out one court order of the registrar - page 23 to 27.  This was court order from a register which he never respect the court order and he done nothing, all the way - - -

CALLINAN J:   Mr Valassis, we have read all of this.  You can take it that we have read it.  If you want to add anything that is not here or, indeed, you want to develop anything that is herem you are entitled to do so, but I think you are really only telling us at the moment what is here.

MR VALASSIS:   Yes, your Honour, I thank you for this.  Is no doubt the court did not follow the law in this particular matter.  Is it possible the solicitor - for they inconvenienced - the law say it is possible when inconvenienced if you can produce, in taxable form, all time for delay.  The law is available and this matter is for 10 years - cost me 35 appearance into the court - and today the respondent he give me a bill, $33,681.80.  He is not only he is not entitled at all of this bill, the respondent should be responsible for my time for 10 years and responsible for the bills which I have available ‑the evidence - he write on top of his hand the last improvement, your Honour, which I can say - No 14 and 15, your Honour, if you have a look this.  Is the barrister of the proceedings which was on behalf of the respondent, on his report he say, clear - we never have any proceedings on 6 April 1988, and he charged me $1000.  Now, the registrar included this particular amount.

HAYNE J:   Again, these seem to be matters that go to the particular merits rather than to the identification of a point of principle or point of law.

MR VALASSIS:   Yes, your Honour.  Under these circumstances is no doubt about an error of law which I have been point out all the way long and I want the Court to give me the opportunity to prove, please.  Thank you, your Honour.

HAYNE J:   The applicant unsuccessfully sought review of a taxation of certain bills of costs delivered by his solicitor.  No point of principle arises.  The decision of the Court of Appeal to refuse leave to appeal to that court is not attended by doubt.  Special leave to appeal will be refused.

AT 2.36 PM THE MATTER WAS CONCLUDED