Stubberfield v Kilner and Anor [1997] QSC 42

3. Declare that the judgment and orders of Mr Randal S.M. Magistrate at Brisbane made on 6 April 1995 on Plaint No. 4523 of 1993 between the above said parties were at all material time null and void."

In support of that application the applicant, who appeared in person, relied on his affidavit filed 7 March 1997 and his further affidavit filed by leave. The only other material before the court was the affidavit of RG Kilner filed by leave on behalf of the respondent firm of solicitors.

It is clear that by the summons the applicant is seeking to have reviewed the taxation of costs pursuant to the order of Byrne J of 3 November 1995. The applicant based a number of his submissions to me on the reasons for judgment of Byrne J and in consequence it is necessary to deal briefly with the background to his judgment.

By originating application, which was designated 268 of 1995 and filed on 26 April 1995 pursuant to the Judicial Review Act, the applicant sought to obtain an order that the decision of the magistrate, Randall S.M., given with respect to Plaint 4523/1993 on 6 April 1995 be quashed and for other orders with respect to that decision. The respondents to that application, who are also the respondents here, applied by application filed 19 May 1995 to have the application for judicial review summarily dismissed. Both those applications were dealt with by Byrne J in his judgment of 3 November 1995. The formal orders made were that the originating application be dismissed and that the "applicant JR Stubberfield to pay the respondent's costs of and incidental to the action to be taxed". The reasons for judgment of Byrne J indicate that the principal reason for so doing was that, as provided for by s.12(b) of the Judicial Review Act, "adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by ... another court". As there was a right of appeal from the decision of the magistrate to the District Court, Byrne J considered that there was no sufficient reason to permit a challenge to the magistrate's decision pursuant to the Judicial Review Act.

Pursuant to that order the respondent firm of solicitors prepared a Bill of Costs in taxable form and in due course the bill came before a Taxing Officer; it was in the circumstances a "party and party" taxation. As a result of the taxation process many of the claimed items were reduced in amount. In summary the bill was originally delivered at $3,521.85, $919.95 was taxed off, and after the adding in of short charges and the taxing fee the bill was allowed at $3,082.65.

Within the time permitted by the rules the applicant lodged a notice of objection; it raised two issues of principle which are set out below, and also raised objection to individual items allowed. On the hearing before me the applicant said he was "not prepared to go into item by item" and no submissions were made with respect to the quantum of individual items in the bill. Submissions on the hearing of the application before me were limited to the issues of principle raised by the notice of objection; the relevant paragraphs were in the following terms:

"1. The Orders arose from His Honour's refusal to quash a judgment of Mr Randall S.M. in favour of the firm, but since the firm's action was Statute barred by non-subscription of the bill the Magistrate's judgment was a nullity. (See the judgment reasons of Justice White O.S. No. 664/95 7/12/95 at p.28.) There is a question as to the discretion of Justice Byrne to refuse an Order to quash, given the binding authority of the Full Court judgment of R v. Police Magistrate at Brisbane ex parte Hammond St. R. Qd. (1936) 245 at p.248.

The finding of Mr Justice Thomas on the same point was relied on see Stubberfield v. CE Webster and Anor O.S. No. 371/95, leave to appeal was refused by the Court of Appeal, but application for leave to appeal has been made to the High Court.

2. In any event the Rules of Court are to apply with force of Statute, rule 81 of O.91 prescribes, "costs not necessary or proper for the attainment of justice or for maintaining or defending the rights of the party shall not be allowed".

There can be no possible doubt that these costs were incurred in order to subvert, frustrate and hinder enforcement and implementation of the law, and preserve a Magistrate's judgment obtained by false claims. It is submitted with respect the taxing officer has no discretion to allow these costs."

The Taxing Officer published Answers to Objections rejecting each of the points raised by the applicant. In those Answers it was pointed out that the order of Byrne J of 3 November 1995 is the "order that is the authority to tax the costs the subject of the bill under consideration". He expressed the view that the reasons for judgment of White J (to which I will refer in a moment) were irrelevant to that consideration. Critically he then pointed out that the "order of Byrne J has not been set aside or varied therefore the order remains a valid authority to tax the respondent's solicitor's costs of those proceedings". He then went on:

"The applicant suggests that the Taxing Officer is to ignore the existence of a valid order to tax on the grounds that Order 91 Rule 81 prohibits the allowance to the respondent of any costs not "necessary or proper for the attainment of Justice". There is no reason to deal with this suggestion having regard to what has been stated above."

In other words the Taxing Officer concluded that he was bound to perform the taxation exercise given the order of Byrne J which is and has been at all material times a final order of a superior court which has not been upset on appeal.

Before proceeding further I should refer to the reasons for judgment of White J which formed a central part of the applicant's submissions both before the Taxing Officer and before me. The respondent firm had acted as solicitors for the applicant in a number of matters prior to January 1993. In about that month a series of documents purporting to be bills of costs were delivered by the respondent solicitors to the applicant; the documents did not comply with the requirements of the Costs Act 1867 because they were not signed by the solicitor. There was no taxation, but the respondent solicitors sued in the Magistrates Court claiming the total amount set out in the documents in question; that was a little less than $3,600. A defence was filed alleging that the documents delivered did not satisfy the requirements of the Costs Act and that at least some of the fees claimed had been improperly incurred or were not recoverable due to negligence on the part of the solicitors. As the reasons for White J delivered 7 December 1995, and the reasons of Byrne J delivered 3 November 1995, amply indicate there were probably errors on the part of the magistrate which resulted in the respondent solicitors obtaining judgment. It was that judgment which was the subject of the application for judicial review before Byrne J. In the collateral proceedings which came before White J it was held that the documents in question did not amount to valid bills of costs pursuant to the Costs Act, and that those bills should be re-submitted in taxable form so that the applicant could have them taxed if required. In her reasons for judgment White J indicated that a stay of the magistrate's order could be justified, but no such order seems to have been made possibly because there has been no attempt by the respondent solicitors to execute on that judgment.

I now return to the merits of the application presently before me. Order 91 rule 81 dealing with a "party and party" taxation is in these terms:

"Costs which do not appear to the taxing officer to have been necessary or proper for the attainment of justice, or for maintaining or defending the rights of the party, or which appear to the taxing officer to have been incurred through overcaution, negligence, or mistake, or merely to the desire of the party shall not be allowed to any party, to be paid or borne by another party."

There have been a number of decisions on that or similar rules; in particular reference can be made to the decision of Asprey J in W & A Gilbey Ltd v. Continental Liquers Pty Ltd (1964) NSWR 527. That judgment makes it clear that in determining whether costs have been necessarily or properly incurred the taxing officer may have regard to "all facts which render probable the existence or non-existence of the facts in issue including those matters which would affect the weight or credibility of any of such facts" (534-5).

There can be no doubt about the relevance of a rule such as rule 81 to a taxation such as this, and there is no doubt that both the taxing officer and myself should apply well established principles derived from decided cases in determining the relevance and application of the rule to the present circumstances. What, as I understand the argument, the applicant is submitting is that because the reasons for judgment of White J establish that the decision of the magistrate was bad in law it was not "necessary or proper for the attainment of justice" for the respondents to have the application for review before Byrne J summarily dismissed. If that proposition is accepted then the applicant says that the respondents are not entitled on taxation to any costs associated with their successful defence of the application brought by the applicant and dismissed by Byrne J notwithstanding the order for costs that he made. That is essentially what the applicant was raising in paragraphs 1 and 2 of his Objections quoted above.

The applicant also made an impassioned plea that I further adjudicate on the very issue decided by Byrne J and hold that in the circumstances he had a right to have the decision of the magistrate determined pursuant to the Judicial Review Act. However I must say that I am firmly of the view that the decision of Byrne J was correct. Indeed in an unreported decision delivered on 3 May 1995 (Owen v. Australian and New Zealand Banking Group Limited and Anor Application 146 of 1995) I dismissed an application brought under the Judicial Review Act primarily because the matter could more appropriately have been dealt with by appeal from the Magistrates Court to the District Court. Further, Thomas J reached an identical conclusion in Stubberfield v. Webster [1995] QSC 182; (1996) 2 Qd. R. 211. The Court of Appeal refused leave to appeal from that decision, and the High Court also refused special leave to appeal. I was informed by the applicant that he was renewing his application for special leave to appeal to the High Court from that decision, but that is of no moment for present purposes. It is not really appropriate in these proceedings to comment on the correctness of the decision of Byrne J but in the circumstances I am so firmly of the view that his decision was correct that I feel I should record that opinion.

I cannot discern any error on the part of the Taxing Officer. The order of Byrne J clearly obliged the Taxing Officer to tax the bill according to law on a "party and party" basis. The Taxing Officer had no jurisdiction to question the propriety of the decision of Byrne J. He was, of course, obliged to conduct the taxation according to law, and that meant, inter alia, apply O.91r.81. The decision of Byrne J impliedly determined that it was just and proper to dismiss the application for judicial review, and the Taxing Officer was therefore correct in allowing costs for steps taken to achieve that result. In the circumstances it could not be said that steps taken to obtain the order of Byrne J were not "necessary or proper for the attainment of justice. The issues which the applicant aired before the Taxing Officer and again on the hearing before me do not provide any proper basis for rejecting, whether pursuant to that rule or otherwise, the Bill of Costs.

In all the circumstances there is no substance in the matters raised by the applicant and the application for review of the decision of the Taxing Officer should be dismissed. There is no basis for staying the allocatur. Finally it is not appropriate on this application for me to consider the decision of Randall S.M. handed down on 6 April 1995.

The application will be dismissed with costs to be taxed.