Adsett v Berlouis & Ors [1993] QSC 13

IN THE SUPREME COURT OF QUEENSLAND No. 783 of 1991 BETWEEN: NOEL ADSETT as Trustee of the Property of HARRY LOUIS BERLOUIS, ARMANDE CELISCA BERLOUIS, LIONEL JEAN BERLOUIS, RAYMOND LOUIS BERLOUIS - BANKRUPTS KATHLEEN ROSEMARY BERLOUIS AND JOHN SCOTT WINNALL trading as "HERVEY BAY KITCHENS" (a firm) Plaintiff First Defendant AND: JOSEPH BERLOUIS Second Defendant EX TEMPORE JUDGMENT - THO~~S J. Delivered the 15th day of January, 1993 CATCHWORDS: Practice consequences of breach of practice direction - non-delivery of objections to bill - inherent jurisdiction to require compliance - need for procedures to be observed on taxation proceedings. Practice direction No. 17 of 1992 R.S.C. 0.93 r.22 Counsel: G. Robinson for plaintiff T. Matthews for defendants Solicitors: Lynch and Company for plaintiffLippiatt and Company for defendants Hearing date: 15th January, 1993 -- 1 of 5 -- ~~~tj State Reporting Burela TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) REVISED COPIES ISSUED -\ ' SUPREME COURT OF QUEENSLAND CHAMBERS THOMAS J No 783 of 1991 NOEL ADSETT AS TRUSTEE OF THE PROPERTY OF HARRY LOUIS BERLOUIS, ARMANDE CELISCA BERLOUIS, LIONEL JEAN BERLOUIS, RAYMOND LOUIS BERLOUIS - BANKRUPTS and KATHLEEN ROSEMARY BERLOUIS AND JOHN SCOTT WINNALL TRADING AS "HERVEY BAY KITCHENS" {a firm) and JOSEPH BERLOUIS BRISBANE . . DATE 1 5 I 0 1 I 9 3 ORDER 1 State Reporting Bureau 1 oate·2-o I I I J Plaintiff First Defendant Second Defendant -- 2 of 5 -- 150193 HIS HONOUR: This is an application on behalf of the defendants for certain orders relating to the taxation of their costs. The plaintiff has been ordered to pay these costs and a bill of costs was served on behalf of the defendants on 18 September 1992. The material plainly shows that the defendants are being subjected to a degree of humbug by a recalcitrant party. The fact that that party, Mr Adsett, the plaintiff, is an officer 10 of this Court who should respect Court procedures is perhaps a 20 matter for concern. However, I turn to the particular issues in this application. The Rules of Court do not set out time frames to aid proper preparation in response to notices of objection in relation to taxations. However, practice direction number 17 of 1992 30 deals with the matter and requires, before application for appointment of a time for taxation, that the party claiming the taxation serve on the other party a copy of the bill of costs. That was done. 'The other party is then required within 10 days of that service by notice of objection to list each ~ item in the bill to which he objects, and to state concisely and specifically the grounds, etcetera. That time for delivery of notice of objection has long since expired. Mr Robinson, who appeared for the respondent, suggested to me, and I accept it as likely to be so, that taxing masters allow objections so to be taken late and that no one has ever, to his knowledge, been deprived of the opportunity of changing ground, even if it comes late. It is, perhaps, time for such practices to be tightened up a little. The application seeks that I shut out the respondent from the 60 2 ORDER -- 3 of 5 -- \ 150193 ,right to appear because of his failure to deliver objections to this point of time. That, I think, would be going too far and one does not lightly shut out the right of appearance in a judicial procedure. It is, however, not going too far, in my view, to require that the objections upon which the respondent intends to rely be delivered within seven days and to deprive the respondent of the right to object to any other ground which is not given within that prescribed time. The respondent does not wish to be directed to deliver his objections within any time at all. He says that he intends to deliver them within another ten days from now. Why the applicants could believe that this would happen is hard to see, but in all events that is totally unsatisfactory. He would seem to wish to preserve the right to give the objections when he chooses, and ultimately turn up before the taxing officer and perhaps deliver a new set, if he sees fit, and then vary them and contend that the taxing master must listen to all such points. To do so would, in my view, make a mockery of the taxation process, and would be quite contrary to the practice direction and the procedures contemplated for an orderly taxation process. I believe that I have the inherent power, as well as the power under Order 93 rule 22,with respect to the impending taxation to make the following direction. I direct that the respondent deliver on or before 22 January 1993 to the applicants' solicitors all such objections to the defendants' bill of costs filed herein on 2 November 1992 as he i.ntends to rely upon on the taxation thereof. I direct that unless the taxing officer shall otherwise order during the taxation of the said ORDER 3 10 20 30 40 50 60 -- 4 of 5 -- 150193 bill, the respondent shall be confined upon the taxation to such objections as are contained in the objections so delivered or to such objections as reasonably arise out of such objections as are so contained. The only other matter, I think, is that of costs of this particular application. HIS HONOUR: The respondent is the party in default of the practice direction and has, I think, taken an unreasonable stance. He opposed the making of any order at all, and it is a situation where the applicant needed the assistance of the Court in order to obtain reasonable notice of the objections that the defendants ought previously to have been supplied 10 20 with. 30 On the other hand, the summons sought more than I have been prepared to grant, and it is therefore understandable that the respondent would attend and oppose the request for relief at least to some extent. However, as I have said, the respondent's attitude went far beyond that. In these circumstances I think the appropriate order is to order that the respondent pay one half of the applicants' costs of and incidental to the summons to be taxed. 4 ORDER 40 50 60 -- 5 of 5 --