Gordon & Gotch (Australasia) Ltd v Cox [1923] HCA 8; (1923) 32 CLR 465 (27 March 1923)

HIGH COURT OF AUSTRALIA

Gordon & Gotch (Australasia) Limited Appellant; and Cox Respondent.

H C of A

27 March 1923

Starke J

Home, for the respondent, in support.

Starke J. delivered the following written judgment:—

Mar. 27

Starke J

This was a summons to review taxation. An appeal had been brought by Gordon & Gotch Ltd. to this Court pursuant to an order giving special leave to appeal. The appeal was ultimately dismissed, and Cox's "costs of this appeal" were ordered to be taxed, and paid by the appellant. Cox appeared voluntarily on the motion for special leave to appeal, and opposed it. The Court gave leave, but subject to a rather onerous undertaking. Nothing was provided as to costs in the order giving leave to appeal. Now Cox claims that his costs on this motion are part of the costs of appeal to which he is entitled under the order dismissing the appeal.

"Costs of appeal" means "extra expense incurred by reason of the appeal being taken" (see Kevans v. Joyce[1]). And appellants obtaining orders for "costs of appeal" are allowed, on taxation in this Court, the costs of any motion for special leave to appeal unless the Court has otherwise provided. This, I think, is right, for the order for special leave to appeal is, in these cases, a necessary step in the appeal: it is the first step in the proceedings by way of appeal, and is an extra expense incurred "by reason of the appeal being taken." The proceedings in appeal do not here start, as in cases where the appeal is of right, by the notice of appeal, but with the application to the Court for leave to appeal.

It is difficult, if the appellant is entitled to his costs of motion for leave to appeal under an order for costs of appeal, to deny that a respondent who opposes the motion on notice is similarly entitled to his costs of so opposing it, in cases in which the "costs of appeal" are awarded to him. The fact that the respondent voluntarily opposes the motion for leave to appeal does not, in my opinion, narrow the meaning of the words "costs of appeal." But it does, I think, throw upon the party who voluntarily appears the duty of satisfying the taxing officer that the costs were not incurred unnecessarily or through over-caution. The burden is no light one. But as I was a member of the Court which granted the leave to appeal and heard the appeal, I will not remit the matter to the taxing officer to inquire whether the costs in this case were reasonably and properly incurred, for I have no doubt that they were. The circumstances were peculiar and special. Gordon & Gotch Ltd. had reserved to it in the order against which it desired to appeal general liberty to amend its pleadings. The respondent was, I think, well justified in appearing and insisting that supposed matters of law should not be decided on pleadings which might at any time be amended. An undertaking was required from the appellant abandoning this leave to amend so far as any matters were brought to appeal. Ultimately the Court held that the appeal was due to misapprehension of the decision of the Supreme Court, and to faulty pleading, and by consent restored leave to amend. But the intervention of the respondent was clearly justified, and ought perhaps to have induced the Court, in the first instance, to refuse leave to appeal.

I allow the summons to review taxation, and direct the Principal Registrar that the items nos. 1 to 7 mentioned in the bill of costs ought, in point of principle, to be allowed, and remit to him for the purpose of considering the amount that should be allowed in respect of each item. Appellant Gordon & Gotch Ltd. to pay £1 1s. costs of this summons.

Order accordingly.

Solicitors for the respondent, Home & Wilkinson.

Solicitors for the appellant, Williams & Matthews.

[1] (1897) 1 I.R., 1, at p. 5.