Clarkson, In the matter of an application for leave to issue or file [2022] HCATrans 178 (19 October 2022)

Last Updated: 19 October 2022

[2022] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B35 of 2022

In the matter of –

an application by MARK ALFRED CLARKSON for leave to issue or file

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON 19 OCTOBER 2022, AT 9.25 AM

Copyright in the High Court of Australia
HER HONOUR: This matter is an ex parte application for leave to issue or file an application for show cause orders. Pursuant to rule 6.07.2 and 13.03.1 of the High Court Rules, I direct that the application for leave to issue or file be determined without an oral hearing. The ex parte application for leave to issue or file is refused. I publish those reasons. In matter number B35/2022 the order of the Court is:

1. The ex parte application for leave to issue or file the application for show cause orders is refused.

I publish that order. I further direct that the reasons as published be incorporated into the transcript.

This is an ex parte application for leave to issue or file an application for show cause orders. On 1 August 2022, Keane J directed that, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), the application for show cause orders was not to be issued or filed without the leave of a Justice first had and obtained by the applicant. This is an application for that leave.

I have read the applicant’s affidavit, which also effectively includes the applicant’s submissions. The applicant’s affidavit states that there was a minor tenancy dispute in the Queensland Civil and Administrative Tribunal (“QCAT”) between the applicant, as tenant, and Pateliz Pty Ltd, the trustee for the Dougal Trust, as landlord. The affidavit states that Ray White Gladstone acted as agents for the landlord in the QCAT proceedings. The applicant’s affidavit further states that, on 12 January 2022, the applicant applied, pursuant to s 40 of the Judiciary Act 1903 (Cth), for an order removing that part of the proceeding pending in QCAT dealing with “the Constitutional issues raised in the matter” to the High Court. Ray White Gladstone, in the capacity as agents for the landlord, was the named respondent in the removal application. On 12 May 2022, Gageler and Gleeson JJ dismissed the removal application, with costs.

On 27 July 2022, a bill of costs was lodged by the respondent and accepted for filing (“the Bill of Costs”). The next day, after reading the Bill of Costs, the applicant emailed the Registry challenging the contents and preparation of the Bill of Costs. There were two main issues raised by the applicant about the Bill of Costs. First, that items 45-56 of the Bill of Costs list matters dated 30 July 2022, whereas the Bill of Costs was filed on 27 July 2022. Second, that the incorrect scale of costs was applied to items 1-41 of the Bill of Costs, which were said to have been completed before 1 May 2022. One day later, on 29 July 2022, the applicant lodged an Application for Show Cause Orders and a supporting affidavit which, as has been explained, Keane J directed, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), was not to be issued or filed without the leave of a Justice first had and obtained by the applicant.

There are a number of difficulties with the Application. First, its contents are, in part, scandalous, by alleging, among other things, that the Bill of Costs was an invitation to pervert the course of justice and was known to be a forgery^[1]. Second, and in any event, regardless of the possible validity of some of his complaints about the contents of the Bill of Costs, an application for show cause orders is not the appropriate course to adopt. On any view, in the circumstances of this case, any application of any kind seeking to challenge the contents and preparation of the Bill of Costs is premature. That last statement needs some explanation.

The relevant steps in a taxation of a bill of costs under the High Court Rules 2004 (Cth), none of which appear to have yet been undertaken, may be summarised as follows and provide an appropriate course for the applicant to seek to challenge a bill of costs.

First, a party filing a bill of costs for taxation may indorse on the bill (as has occurred on the face of the Bill of Costs) a request that a Taxing Officer, in the absence of the parties and without making any determination of any individual item in the bill, make an estimate of the approximate amount of professional charges and disbursements that, in the opinion of the Taxing Officer, would be allowed if the bill of costs were taxed^[2]. This estimate process is undertaken without submissions or objections from the parties. Once an estimate is made, the Taxing Officer notifies each party in writing of the estimate made^[3].

Next, r 57.01.4 of the High Court Rules provides the mechanism for a party to dispute or object to the estimate and provides:

“Unless, within 14 days of the Taxing Officer sending notice of the estimate made under rule 57.01.1:

(a) the party who has filed the bill gives notice that that party disputes the estimate and requires taxation of the bill; or

(b) a party interested files and serves on all other parties to the taxation a notice of objection under rule 57.02;

there shall be no taxation of the bill and a Certificate of Taxation shall be issued for the amount of the estimate.” (emphasis added)

The applicant is a “party interested”. Following notification of the estimate made by the Taxing Officer under r 57.01 to the parties, if the applicant retains objections such as those set out in the applicant’s affidavit of 29 July 2022, the appropriate time and venue for raising those objections is for the applicant to file a notice of objection under r 57.02.1 to any item in the bill of costs^[4]. Rule 57.02.2 states:

“A notice of objection pursuant to rule 57.02.1 shall:

(a) state each item to which the party objects;

(b) state concisely the grounds of objection;

(c) state the amount (if any) which the party contends should be allowed for the item; and

(d) be filed and served not less than 3 days before the time appointed for taxation on the party seeking taxation of the bill.”

This objection process takes place after an estimate has been made by the Taxing Officer and notified to the parties, and the party or parties that wish to object to the estimate or any item in the bill have made payment of security for the costs of the taxation^[5]. It is only then that a taxation is held with the parties entitled to attend and make submissions. Each of those steps remain to be taken. It is for those reasons that the application for leave to file the application for show cause orders is refused. It is not the appropriate mechanism to address the applicant’s complaints about the contents of the Bill of Costs.

Pursuant to rr 6.07.2 and 13.03.1 of the High Court Rules, I direct that the ex parte application for leave to issue or file the application for show cause orders be determined without an oral hearing. The ex parte application for leave to issue or file the application for show cause orders is refused.

Adjourn the Court.

AT 9.26 AM THE MATTER WAS CONCLUDED

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[1] High Court Rules 2004 (Cth), r 27.09.5.

[2] High Court Rules, r 57.01.1.

[3] High Court Rules, r 57.01.3.

[4] High Court Rules, r 57.02.1.

[5] High Court Rules, r 57.01.5.