The Court of Appeal has dismissed Anthony J. Fitzpatrick’s appeal against a High Court refusal to quash three certificates of taxation issued in favour of liquidator Myles Kirby. The court found that Fitzpatrick had not established a breach of fair procedures over the refusal to adjourn the taxation hearing, or objective bias by the Taxing Master, Paul M. Behan.
The certificates followed costs orders made against Fitzpatrick personally in proceedings over the winding-up of Elm Star Frames Limited. Kirby had been appointed official liquidator after Fitzpatrick, the company’s nominated voluntary liquidator, opposed the winding-up petition. The Taxing Master heard the taxation on 12 July 2018 and issued three certificates on 2 August 2018.
Fitzpatrick argued that he needed more time to instruct a legal costs accountant and that his hospitalisation supported an adjournment. The Court of Appeal said no medical report or details of the hospital stay had been put before the Taxing Master, and the hospitalisation had not been raised in the earlier correspondence seeking an adjournment. The court also noted that Fitzpatrick had been represented by a solicitor and counsel and that correspondence showed he had been able to give instructions during the preceding weeks. It upheld the High Court’s conclusion that he had shown no error of law in refusing the adjournment. The separate complaint that the Taxing Master gave inadequate reasons was not a ground of appeal; the court said the incomplete evidence about the adjournment request and ruling would also have prevented that claim from succeeding.
The bias claim centred on Behan’s former business relationship with the notice party’s costs accountant and his registration as the holder of the business name “Behan & Associates”, used by the accountant’s firm. The court said a prior business relationship alone did not establish a reasonable apprehension of bias. It held that registration under the Business Names Act 1963 did not create a proprietary or economic interest in the name. Behan had also disposed of his interest in premises leased to the firm in December 2017, before the taxation hearing, and had divested his shareholdings by 2014.
The court dismissed the appeal and upheld the High Court’s refusal to grant certiorari. It also declined to alter the High Court’s order limiting Kirby’s costs to 50% of the first hearing day, as neither side had established grounds for changing it. The court’s provisional view was that Behan and Kirby were entitled to their costs of the appeal. Fitzpatrick was given 14 days to seek a brief supplemental hearing on costs; absent such an application, the proposed costs order would be made.