Minister for Home Affairs v Beale [1916] HCA 30; (1916) 22 CLR 98 (5 May 1916)

HIGH COURT OF AUSTRALIA

The Minister for Home Affairs Plaintiff; and Beale Defendant.

H C of A

5 May 1916

Rich J.

Pike, for the plaintiff.

Bavin, for the defendant.

Pike, in reply.

Rich J.

It is admitted that the taxing officer had a discretion in regard to the allowance or otherwise of this particular item. The question I have to determine is whether he has exercised his discretion.

I am satisfied from the written reasons furnished by the taxing officer that he has not exercised untrammelled discretion. He appears to have disallowed the item on the ground that such a fee is never allowed in the State of New South Wales.

In exercising his discretion the taxing officer must consider whether, under the circumstances of the particular case, the fee was necessary or proper for the attainment of justice.

I have had the advantage of hearing the case and of inspecting the land, and I am of opinion that in this case a view by counsel was necessary and proper, and not in the nature of a luxury. Counsel was enabled to see for himself the subject matter of the case he had to conduct, and to ascertain its nature at first hand, and so weigh the evidence of the experts and other witnesses proposed to be called. In the result I am satisfied the case was considerably shortened, and great waste of time and expense prevented.

I would add a word or two with regard to the reasons that the taxing officer states would have actuated him if he had a discretion. It does not follow that because the fee is allowed in this particular case it must be allowed in every case where the question at issue is the value of a block of land: there is no such general rule. Every case must be dealt with on its own merits, having regard to the principles I have already stated. It would be difficult to imagine a case dealing with the valuation of a large area (involving as it does complex classification of elements of value) where such a fee would not be necessary and proper.

The facts that experts have valued the land and that a plan of it has been prepared do not, in themselves, render a view by counsel unnecessary. One of the objects of the view is that counsel may thoroughly understand the reports of the experts and the plan before he embarks on the conduct of the case. Experts differ considerably; a plan is a mere scrap of paper with certain lines drawn on it, which a view converts into a live thing.

The fact that one counsel only had a view indicates, to my mind, no more than that the parties desired to keep down expense, and junior counsel could inform his senior on all necessary points.

So far as the English practice is concerned, having regard to the different conditions prevailing here in regard to land and land valuation, little or no assistance can be gathered from such practice.

I allow the objections, and refer the matter back to the taxing officer to vary his certificate accordingly. I make no order as to costs, as costs are not asked for.

Objection allowed. Matter sent back to the taxing officer to vary his certificate accordingly.

Solicitor for the plaintiff, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitors for the defendant, R. A. Munro King, Dowd & Barry.