The Costs Judge recently clarified the procedure for seeking review of a decision of a Judicial Registrar on a preliminary point of law in a taxation of costs in the Costs Court. Essentially, his Honour said, the procedure in r. 63.56.2, mutatis mutandis, will generally be appropriate, including the 14 day time limit referred to in it. In relation to this kind of decision of a Judicial Registrar, the review goes straight to the Costs Judge, unlike in the case of rulings upon items in a bill of costs during the taxation proper, where there is a bizarre requirement for the Judicial Registrar to reconsider her own decision before it may be appealed to the Costs Judge.
Much of the decision making in relation to preliminary legal points in taxations other than party-party taxations is done in Victoria by the Costs Judge (Associate Justice Wood) and by the Judicial Registrar (Gourlay JR). Section 17HA of the Supreme Court Act 1986 provides:
‘Subject to the [Supreme Court's Civil Procedure] Rules, a party who objects to a determination made by a judicial registrar in accordance with this Division … may apply to the Costs Court constituted by a Costs Judge for a review of that determination.’
There are in the Rules no rules associated with such an appeal. There are only rules associated with another species of appeal, namely where in the taxation proper, the Judicial Registrar makes a ruling in relation to an item in a bill of costs: r. 63.56.2. So the Court must devise its own procedure: r. 1.15(1)(b); s. 17D(4) of the Supreme Court Act 1986.
The Costs Judge recently found that a decision of the Judicial Registrar of the kind described by s. 17HA and not described by r. 63.56.2:
‘can be reviewed if written reasons have been given by the judicial registrar (63.56.4.(2))’.
His Honour continued:
‘the application shall be made by notice (63.56.4(3)) and the notice should state specifically and concisely the grounds of objection to the order and the order sought in its place (63.56.4(4)(b)). The time limit of 14 days to file and serve the application should apply and the time runs from the making of the order or provision of the reasons, whichever is the later (63.56.4(5)). On review, unless the Costs Judge orders otherwise, further evidence cannot be received and no new ground of objection not stated in the notice can be received (63.56.4(6)). On review, the Costs Judge may exercise all the powers and discretions of the Costs Court and can set aside confirm or vary the judicial registrar’s decision and make such further orders as may be necessary (63.56.4(7)).’