Western Australian Bank v Royal Insurance Company [1908] HCA 71; (1908) 7 CLR 385 (10 November 1908)

HIGH COURT OF AUSTRALIA

The Western Australian Bank Appellants; and The Royal Insurance Company Respondents.

H C of A

10 November 1908

Griffith C.J.

Pilkington K.C. for the appellants, in support of the summons.

Downing, for the respondents.

November 10

Griffith C.J.

It is not disputed that there is no English precedent for the allowance of such a charge as that in question. Indeed, the only analogy that could be invoked is that of an appeal to the Sovereign in Council, and I do not know that it has ever been suggested that on an appeal from a Dependency the expenses of a party's legal adviser sent from the Possession from which the appeal is brought should be allowed. The claim must therefore be based on the special circumstances of the Commonwealth and the manner in which the appellate jurisdiction of the High Court is at present exercised.

Differing in this respect from other Courts of final appeal, this Court sits in the several States, endeavouring to give suitors in all the States, however distant from the seat of Government, equal facilities for obtaining its judgment. After five years experience I am of opinion that this system is beneficial both to suitors and to the Court. It is no small advantage to have an appeal argued by counsel familiar not only with the history of local legislation, where, as often happens, that history is material, but also with the facts of the case and the manner in which it was presented to the Court from which the appeal is brought. Indeed, in many cases I think that this Court might have fallen into error but for such assistance. Instances are not wanting (I say it with all respect) in which judgments of the Judicial Committee have been based upon a view of facts which would not have been even suggested in the presence of counsel fully acquainted with the actual circumstances of the litigation. In the absence of counsel so acquainted the want may, in some cases and to some extent, be supplied by the attendance of the solicitor or his managing clerk. The first question is then whether, when an appeal is directed by this Court to be heard in a State other than that in which the decision appealed from was given, the costs of such attendance can be allowed in any case.

In my opinion, in order to put suitors in all parts of the Commonwealth on an equal footing as far as practicable, such costs should in a proper case be allowed as costs which a litigant of ordinary prudence would incur to secure the proper presentation of his case to the Court. If any other rule were adopted, the parties to an appeal transferred from the State of origin to another might be placed at a serious disadvantage. There are, no doubt, many cases in which such a charge would be unreasonable; as, for instance, an appeal upon a question of abstract law. But in some cases it may be reasonable and proper to be allowed.

The remaining question is whether the present appeal was one in which such costs might properly be incurred. The Registrar thought that in his discretion he ought not to allow the charge, even if he had power to do so. But he was of opinion, as I read his memorandum of reasons, that such a charge could not be allowed in any case. In this I do not agree with him, although I think that in the absence of any authority to the contrary he was justified in following English practice. I also agree that the matter is one for the exercise of discretion, but I think that the discretion of the taxing officer should be freely reviewed by the Court, and that the discretion of the Court should be exercised upon its own knowledge of the circumstances of the particular case.

In the present case I think that the Court was in fact assisted in coming to a right conclusion by the presence of the gentleman in respect of whose attendance the costs in question were incurred. It became important in the course of the hearing of the appeal to inquire as to various incidents in the trial and in the Full Court, which were not disclosed by the transcript, but as to which important information would have been given by counsel if the case had been heard at Perth. I am not, indeed, sure that the same result would have been arrived at by the Court in the absence of the information thus afforded—at any rate, not without adjournment and further argument upon further information.

I think, therefore, that in the present case something should be allowed in respect of the attendance in question. The amount is primarily for the discretion of the taxing officer, but I suggest for his guidance, not by way of direction, but as an intimation of my own view, that a lump sum should be allowed, not necessarily based upon the length of absence from the State or on the footing of a daily allowance, although both these matters are elements to be taken into consideration in fixing the lump sum.

The application to review the taxation will therefore be allowed, but as the case is one of first impression, and I cannot blame the respondents for taking the objection, I make no order as to costs.

The question raised by this application being one of general importance, I have consulted my learned brothers Barton and O'Connor before coming to a conclusion. They authorize me to say that they concur in my view as to the rule which should be followed in such cases.

Solicitors, for the appellants, Stone & Burt.

Solicitors, for the respondents, Downing & Downing.