Rudstein Kron Lawyers v Pisanelli & Ors [2003] VSCA 166

Court of Appeal (Vic)|2003-10-24|Before: PHILLLIPS, BUCHANAN and CHERNOV, JJ.A.

For the reasons already given, it seems to me that Ms Pisanelli is entitled to have the bill of costs delivered to her taxed, or, to use the modern term, assessed by the Taxing Master. Mr Boaden, I think, accepted as much in the course of argument. Ms Pisanelli, who addressed us herself and whose partner, Mr Kotantonis, was at her request permitted to address us on her behalf, still seeks taxation. That was her position on 2 July 2001 when she took out the summons for taxation and, as I understood what she told us this morning, it was still her position today. Thus, it seemed to me that a holding position while taxation took place would be acceptable to both sides.

Indeed, both sides were pressing us during argument to take whatever steps we could to save any further cost and expense in what has proved already to be unduly costly and time consuming for all parties and, accordingly, we considered making an order, by consent, under s.116 of the Legal Practice Act that the bill be taxed and making a further order, by consent, that upon completion of the taxation, such sum as was allowed on taxation for costs as claimed by the appellants and, if any, for the costs of the taxation, should be paid, with any interest thereon, by Mr McMonnies out of those moneys paid to him by the doctor and held by him in an interest-bearing account under cover of the order made by the Court of Appeal on 27 July. By means of such orders, I should have thought, the parties could have been saved any further attendance on this appeal and the matter could have reached finality by the quickest possible route.

At the conclusion of argument before lunch, we stood the matter down until 2.30 with a view to preparing the reasons which I have just read. When we re-entered court we sought the consent necessary for the making of the order for taxation under s.116; for it is a power committed by the Act to "the Supreme Court" and by that we understand is meant the Trial Division. While no doubt we could make the order by consent, that consent was not forthcoming. Ms Pisanelli was reluctant to consent to such a step and about that I say nothing by way of criticism; Ms Pisanelli is not a lawyer, she appears here in what are no doubt intimidating circumstances, to make such case as she can, and we understand that she feels herself not in a position to give the consent which was sought. So be it. In those circumstances, it seems to me that the best course is for us simply to adjourn the

further hearing of the appeal with a view to our making orders at a later stage as and when they become appropriate.

Taxation of the bill of costs is obviously the next step, if what I have so far said meets with the approval of the other members of the Court. In order to obtain taxation, it will be necessary now, as Ms Pisanelli's summons was dismissed by the Taxation Master, for the solicitors themselves to make application for an order to that effect, presumably under s.116 of the Legal Practice Act. I think that at this stage Mr Boaden sees no reason why that application could not be made. If that application is granted, taxation should prove possible of the bill of costs delivered some time ago by the solicitors to Ms Pisanelli. Upon completion of the taxation (assuming that taxation follows) it will be time enough for us to consider final orders in the disposition of the appeal. In the meantime, the holding position created by the Court of Appeal order made on 27 July 2001 will continue to run and Mr McMonnies will continue to hold the moneys paid to him by the doctor by way of settlement.

Thus, for these reasons, which should serve to record the stage now reached on the appeal, I think that the Court should adjourn the further hearing of the appeal. Given past events, I would adjourn it to a date to be fixed.

I agree with the course proposed by Phillips, J.A. and for the reasons he has stated.

The order of the Court is that the further hearing of this appeal is adjourned to Friday, 12 December 2003. The costs of today are reserved.

[2] (1998) 1516 FCA (27 November 1998, Weinberg, J., unreported).

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