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[2019] VSC 306
General information, not legal advice.
Supreme Court of Victoria
2019-05-10
Richards J
Original judgment source is linked above.
40 A member of the Registry staff replied to Mr Giza's email, explaining that the orders he sought would not be made on the basis of his email alone, and that any application for further orders had to be accompanied by an affidavit in support. Mr Giza was later advised, by email on 27 November 2018, that Judicial Registrar Clayton had dispensed with the usual requirement for a summons. Mr Giza did not take the matter any further. He did not file any supporting material and did not make any submissions as to why the Court should make the orders sought. His application was not 'muzzled'; he simply did not pursue it.
41 If Mr Giza had pressed his application for production of the solicitors' file before me, I would have asked him to identify which grounds of review required examination of documents on the file. As mentioned, Mr Giza's notice of review did not object to any specific item in either bill of costs. In those circumstances, it is difficult to see how the solicitors' file could have been relevant to the review.
42 For these reasons, I cannot accept Mr Giza's submission that I should dismiss the summons for taxation because the solicitors' file was not available at the hearing before me.
43 Finally, Mr Giza contended that Associate Justice Wood was biased and unfair in conducting his review. I understood there to be two broad grounds for this contention. The first was a complaint that Associate Justice Wood had represented Waybecca's interests at the hearing before him. The second was a submission that Associate Justice Wood had demonstrated bias by reaffirming the incorrect decisions of Judicial Registrar Gourlay and Costs Registrar Walton, rather than exercising his own independent judgment.
44 In relation to the first ground, I have carefully reviewed the transcript of the hearing before Associate Justice Wood on 16 August 2018. It appears from the transcript that his Honour heard submissions from both Mr Giza and Ms Bahonko. He explained the process, asked some questions, and directed attention to relevant matters. He was appropriately focused on trying to understand the submissions that were being put to him during the hearing. He said nothing that could be described as representing Waybecca or taking its side.
45 There is a paragraph in the Reasons about Waybecca's non-participation in the review.[22] It concludes with the observations that Waybecca's non-appearance did not amount to a concession as to merit, and that the respondents bore the onus to establish the merits of the review and the summons. These observations are unexceptionable, and do not indicate bias or unfairness.
46 As to the second ground, it is plain from the Reasons of Associate Justice Wood that he did exercise independent judgment in conducting his review. His Reasons deal carefully with the grounds put forward by Mr Giza and explain in detail his conclusion that there was no error in the decision of Judicial Registrar Gourlay. The fact that Associate Justice Wood was not persuaded that there was any error in the decision he was reviewing does not indicate bias - actual or apprehended.
47 The notice of review dated 21 September 2018 is dismissed. There is no order as to costs.
[1] Vella v Waybecca Pty Ltd (No. 2) [2015] VSC 678.
[2] Giza v Waybecca Pty Ltd [2016] VSCA 184.
[3] Waybecca Pty Ltd v Vella [2018] VSC 492 (Reasons), [1]-[3]. More detail is provided in Judicial Registrar Gourlay's reasons for decision dated 14 March 2018, at [1]-[6] and in the Court of Appeal's reasons for decision dated 22 April 2016, at [4]-[14].
[4] Vella v Waybecca Pty Ltd (No. 2) [2015] VSC 678, [23]-[36].
[5] Giza v Waybecca Pty Ltd [2016] VSCA 78, [4]-[14].
[6] Giza v Waybecca Pty Ltd [2016] HCASL 314. See also Giza v Waybecca Pty Ltd [2016] HCASL 241, in relation to the Court of Appeal's earlier decision refusing extensions of time and refusing a stay of a costs order made by Lansdowne AsJ.
[7] Rule 63.57 was repealed effective 1 October 2018 by the Supreme Court (Chapter I Costs Court Amendment) Rules 2018. The repeal does not affect this review, which was commenced on 21 September 2018.
[8] [2005] VSCA 257; (2005) 12 VR 257, [13] (Hollingworth AJA, Buchanan and Nettle JJA agreeing).
[9] For example: Alsop v Lord Oxford [1833] EngR 606; (1833) 1 My & K 564, 39 ER 794; Re Catlin [1854] EngR 481; (1854) 18 Beav. 508, 52 ER 200; In the Estate of Ogilvie (1910) P 243; Coon v Diamond Tread Co (1938) Ltd (1950) 2 All ER 385.
[12] For example, Magna Alloys & Research Pty Ltd v Coffee (No 2) [1982] VicRp 10; [1982] VR 97 at 102 per Fullagar J.
[13] Universe Tankships Inc of Monrovia v International Transport Workers' Federation [1983] 1 AC 366, 400.
[14] [2015] VSC 758; (2015) 49 VR 573 (Actrol Parts).
[16] Actrol Parts, [72], [74]-[85].
[17] In his further written submissions dated 5 April 2019, Mr Giza relied on a letter dated 7 June 2017 from Ms Bahonko to Waybecca's solicitors. The letter made a series of demands but conveyed no offer of any kind.
[18] Rules, r 63.30, in respect of the costs ordered to be paid on the standard basis. In respect of those costs ordered to be paid on the indemnity basis, costs must be disallowed in so far as they are of 'an unreasonable amount or have been unreasonably incurred': Rules, r 63.31.
[19] Board of Examiners v XY [2006] VSCA 190; (2006) 25 VAR 193, [31]-[36] (Chernov JA, Neave JA agreeing), [40]-[43] (Nettle JA). See also GE Dal Pont, Law of Costs (4th ed, 2018), [8.30].
Waybecca Pty Ltd
Vella [2019] VSC 306