Donohoe v Britz (No 2) [1904] HCA 25; (1904) 1 CLR 662 (17 September 1904)

HIGH COURT OF AUSTRALIA

Donohoe Appellant; and Britz Respondent (No. 2).

H C of A

17 September 1904

Barton, J.

Mitchell for the respondent, in support of the summons.

Blacket, for the appellant, in opposition to the summons.

Barton, J.

It is a general rule that, as between party and party, the luxuries of litigation must be paid for by those who indulge in them, the necessaries only are to be paid for by the losing side. Various considerations arise in the application of this proposition. Here, for instance, an allowance beyond the ordinary practice is asked for because it is said that it was "necessary" that the respondent should have the protection of extra counsel. But it has been urged that in such a case three factors must concur, viz., a great mass of evidence to be dealt with, a large sum of money involved, and difficult points of law raised, in order that a litigant should hesitate to go into Court with less than three counsel. The question is whether the engagement of so many was reasonable and prudent, and therefore necessary. It is conceded that, if the case had rested where it did before the Supreme Court, this application might not have been well founded; but now it is contended that the expense of a third counsel is a justifiable charge upon the losing party, because a very important question arose, involving the reading together of the Constitution and the Customs Act, and involving most serious considerations as to whether certain provisions of law operate retroactively to create offences.

I am not going to decide this case upon the necessity of the concurrence of the three elements I have mentioned. Applying the principle laid down in Kirkwood v. Webster (supra), I am not satisfied that this is a case in which the facts justify any interference with the decision of the Registrar. I do not say what would have been my decision had he allowed three counsel. It is enough to say that he does not appear to have acted contrary to right principle. There was certainly a large amount at stake, but the most important element was the constitutional question, and the extent to which the transactions of the Customs Department would be guided by the result. I admit fully the importance of the case, but I do not think the circumstances justify me in ordering the Registrar to review his decision.

It often happens that there is more room for three counsel in anterior than in ulterior proceedings. Usually the points of the case are sifted before the hearing of the appeal, when the debate is narrowed down to certain main questions, and, in this case, taking in view the research already made up to that stage, I cannot say that, on the appeal, the mental and physical strain on two counsel was of such a nature as to justify the retaining of a third. The case was argued below by two on each side, and I do not see that even there the strain on their minds was such as to render it likely that two counsel would have been overweighted with the case on appeal. Claiming credit for merely ordinary prudence, I should not have considered myself in any danger if I had come into Court with any two of the counsel who held briefs for the respondent.

Now, as to the copying of the briefs. This part of the claim of costs is not insisted on with respect to two of the briefs. As to the third brief, the claim fails with the failure of the portion relating to third counsel, and therefore I do not disturb the Registrar's finding in that respect.

As the application has failed, the costs must fall upon the applicant. Also, they must be set off against his costs of the appeal.

Application dismissed with costs. Costs of the application to be set off against the general costs of appeal.

Solicitor for the respondent (applicant), Mark Mitchell.

Solicitor for the appellant (respondent in this application), The Crown Solicitor of New South Wales.