Alexander Stewart & Sons Ltd v Robinson (No 2) [1921] HCA 8; (1921) 29 CLR 325 (23 March 1921)

HIGH COURT OF AUSTRALIA

Alexander Stewart & Sons Limited Plaintiff; and Henry Macnamara Robinson (Acting Collector of Customs, Brisbane) Defendant. [No. 2.]

H C of A

23 March 1921

Starke J.

Kelly, for the plaintiff.

Owen Dixon, for the defendant.

Starke J. delivered a written judgment which, so far as is material to this report, was as follows:—

Mar. 23

Starke J

An action was brought in the Supreme Court of Queensland in which the questions of law arising thereon were stated in the form of a special case, and Chubb J. ordered that the case be argued before this Court (see Judiciary Act, sec. 18). One of the questions stated by the case was by whom should the costs of the case and the action be paid. This Court determined that the costs should be paid by the defendant. Apparently pursuant to this order, costs were carried in for taxation before the District Registrar of this Court in Brisbane, who taxed the same. Objections to the taxation were lodged by both parties, and the matter comes before me on summonses to review the taxation.

Costs in relation to proceedings before this Court can properly be taxed by its officers, but costs in relation to proceedings before the Supreme Court of the State should be taxed before the proper officer of the Supreme Court. Most of the items objected to were in relation to proceedings before this Court, and these items were properly before me on the summonses to review. I deal with them in the first place.

Counsel's fee on brief.—This item relates to the fee paid to junior counsel, who was sent specially from Brisbane to take part in the argument of the case in Melbourne. The Registrar reduced the item claimed, but allowed the reduced amount on the authority of Commissioner of Income Tax (Q) v. Bank of New South Wales[1]. The expenses of sending legal advisers to another State may, no doubt, be allowed as costs if a litigant of ordinary prudence would reasonably have incurred them to secure a proper presentation of his case to the Court (see Norton v. Herald[2]; Western Australian Bank v. Royal Insurance Co.[3]; Commissioner of Income Tax (Q) v. Bank of New South Wales[4]). But in this case the matters to be dealt with were purely matters of law, and in such a case the party claiming the expense must, in my opinion, satisfy the Court of very special circumstances (see Western Australian Bank v. Royal Insurance Co.[5]). I think there were such circumstances in this case. The matter was urgent, and this Court, on 26th October 1920, fixed 3rd November in Melbourne for the hearing of the special case. A heavy list of cases for hearing in Sydney in November and December rendered this date necessary if the case were to be heard within a reasonable time. The action had been brought on the advice of Queensland counsel, who were therefore conversant with all its details. Written opinions and correspondence would not, I think, have given the party full advantage of the advice that he had obtained in Queensland. Personal consultations with the learned counsel who was to lead the case were essential, or at least reasonable, in the special circumstances of the case. The District Registrar was therefore justified, in my opinion, in allowing the challenged item, and I see no reason to doubt the propriety of the amount allowed by him.

Instructions for brief.—The District Registrar allowed the plaintiff the costs of drawing instructions or observations to counsel on the special case, but he also allowed instructions for brief in the action. The latter instructions are in relation to the action whilst in the Supreme Court of Queensland, and should be carried in for taxation before the proper officer of that Court, and, if necessary, reviewed in that Court. The District Registrar of this Court ought not, in my opinion, to have allowed this item. I set aside his allowance of the same, and remit it to him with a direction that it should not be allowed as part of the costs of the proceedings in this Court. Probably the item can be carried in for taxation before the taxing officer of the Supreme Court and be subject to review in that Court. I must leave the parties to exercise their rights in respect of this item as they may be advised.

The parties will abide their own costs of the summonses, for neither has wholly succeeded.

Order accordingly.

Solicitors for the plaintiff, Hawthorn & Lightoller, Brisbane, by Derham, Robertson & Derham.

Solicitors for the defendant, Chambers, McNab & McNab, Brisbane, by Gordon H. Castle, Crown Solicitor for the Commonwealth.

[1] [1914] HCA 28; 18 C.L.R., 207.

[2] [1913] HCA 63; 17 C.L.R., 76.

[3] [1908] HCA 71; 7 C.L.R., 385.

[4] [1914] HCA 28; 18 C.L.R., 207.

[5] [1908] HCA 71; 7 C.L.R., 385.