|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
High Court of Australia |
H C of A
On appeal from Rich J.
10 October 1930
Rich J.
Russell Martin and Byrne, for the applicant.
Herring, for the respondent, the Commissioner of Land Tax.
Rich J
. delivered the following judgment:—This is an application to review the decision of the District Registrar in Brisbane disallowing certain items upon taxation of appellant's bill of costs, which costs arose out of an appeal by the appellant against his assessment to land tax in respect of certain Crown leaseholds in Queensland.
The items so disallowed fall into three groups. Items 2-22 form the first group, and consist of notices of objection to assessments for various years and in respect of various leaseholds, requests to the Commissioner that the taxpayer required such notices to be treated as appeals and transmitted to the High Court, letters refusing to accept amended assessments from time to time issued by the Commissioner and insisting on the transmission of the objections, and attendances on the Commissioner and his officers. In my opinion the notices of objection (items 2-13) form the very keystone of the appeal of the taxpayer to this Court. Mr. Herring contended that it is the request to forward the notices that constitutes the appeal, but I cannot agree with that contention. The request merely sets the appeal in motion, but having been set in motion, the thing which is before the Court is the taxpayer's notice of objection, and it is the foundation of the appeal. As soon as the letter requesting that the notice of objection be transmitted to the Court is sent, there is a relation back to the notice of objection itself which becomes the appeal. That being so, I consider the remaining items in this first group necessary and proper steps in the appeal, and I accordingly allow the appellant the costs of items 2-22.
Four items comprise the second group of objections, namely, 47, 79, 83 and 87. Item 47 relates to the perusal by appellant's solicitor of transcripts of reports of Royal Commissions appointed by the Commonwealth Government to inquire into the proper method of valuation of Crown leaseholds in Australia. Items 83 and 87 refer to copies for counsel of the address of Mr. Owen Dixon K.C. (as he then was) before the last of those Commissions. So far as items 47 and 79 are concerned I propose to allow the objection. Solicitors are responsible for giving proper and adequate instructions to counsel: it is not sufficient to collect a mass of documents and pass them over to counsel to do their best or their worst with. It is a solicitor's duty to instruct counsel, and it was necessary in this case, in order to instruct them fully, to peruse these reports and to select relevant portions of them for the purpose (inter alia) of cross-examination of departmental witnesses who had given evidence before the Royal Commissions. If the solicitor in this case had come before the Court without having done this work, he would have neglected his duty. It was manifest that the very thing which had been submitted to Royal Commissions for solution was now propounded to the Court. I therefore allow items 47 and 79; and, agreeing with appellant's objections as to items 83 and 87, I also allow them, provided, however, that they are not included in item 79.
The third group is really comprised of item 118 relating to counsel's fees and refreshers. The first question here involved is whether the appellant was justified in sending Victorian counsel to the hearing of the appeal in Brisbane. In my opinion, and I was the Judge who heard the appeal, such a course was justified. This is a Federal Court and the case was a Federal case, and a litigant in proper circumstances is entitled to select counsel from within the Commonwealth and, in my opinion, such circumstances were present in this case.
This was not an ordinary case. It was a test case and the judgment fixed the method of valuation of Crown leaseholds and has been acted upon since by the Commissioner and taxpayer appellants in the preparation and conduct of their respective cases. Mr. Owen Dixon K.C. (as he then was) and Mr. Russell Martin having appeared before the last of the Royal Commissions were on that account considered by the solicitor, and on good grounds, to be eminently fitted to handle such a case as this. It was a wise and proper precaution for the solicitor to brief the counsel he thought the most familiar with this type of case. I am not dealing now with individuals, I am dealing with a principle: the case was of great importance both to the Department, to the appellant and to Crown leaseholders in general; it dealt with the method of valuation of great tracts of land and involved questions both of law and fact. In my opinion appellant might reasonably have asked for the costs of three counsel and not those of two. The second question raised by this objection, namely, the allowance of refreshers beyond the maxima fixed by O. LIV., r. 60, of the High Court Rules, turns on the effect of r. 42 of that Order upon r. 60. I think it is clear that r. 42 gives the taxing officer a discretion in special circumstances, such as there are in this case, to go beyond the maxima for refreshers set out in r. 60. (See Cavendish v. Strutt[1] ; Stewart & Co. v. Weber[2] , and In re Ermen; Tatham v. Ermen[3] .) These cases were all decided long before the present High Court Rules came into being, and the Judges who drew up these Rules must be taken to have known the English Rules (upon which our Rules are based) and the construction applied to those English rules, and this construction must be taken to have been adopted in the High Court Rules. For these reasons I propose to refer item 118 back to the learned District Registrar on the question of quantum and with the observations that this case is one which justifies the briefing of counsel from one State to attend the hearing in another State and that r. 60 is subject to r. 42.
Appeal dismissed.
Solicitor for the appellant, W. H. Sharwood, Crown Solicitor for the Commonwealth.
Solicitors for the respondent, Whiting & Byrne.
H C of A
On appeal from Rich J.
2 November 1930
Isaacs C.J., Gavan Duffy and Starke JJ.
Russell Martin and Byrne, for the applicant.
Herring, for the respondent, the Commissioner of Land Tax.
Rich J. delivered the following judgment:—
This is an application to review the decision of the District Registrar in Brisbane disallowing certain items upon taxation of appellant's bill of costs, which costs arose out of an appeal by the appellant against his assessment to land tax in respect of certain Crown leaseholds in Queensland.
The items so disallowed fall into three groups. Items 2-22 form the first group, and consist of notices of objection to assessments for various years and in respect of various leaseholds, requests to the Commissioner that the taxpayer required such notices to be treated as appeals and transmitted to the High Court, letters refusing to accept amended assessments from time to time issued by the Commissioner and insisting on the transmission of the objections, and attendances on the Commissioner and his officers. In my opinion the notices of objection (items 2-13) form the very keystone of the appeal of the taxpayer to this Court. Mr. Herring contended that it is the request to forward the notices that constitutes the appeal, but I cannot agree with that contention. The request merely sets the appeal in motion, but having been set in motion, the thing which is before the Court is the taxpayer's notice of objection, and it is the foundation of the appeal. As soon as the letter requesting that the notice of objection be transmitted to the Court is sent, there is a relation back to the notice of objection itself which becomes the appeal. That being so, I consider the remaining items in this first group necessary and proper steps in the appeal, and I accordingly allow the appellant the costs of items 2-22.
Four items comprise the second group of objections, namely, 47, 79, 83 and 87. Item 47 relates to the perusal by appellant's solicitor of transcripts of reports of Royal Commissions appointed by the Commonwealth Government to inquire into the proper method of valuation of Crown leaseholds in Australia. Items 83 and 87 refer to copies for counsel of the address of Mr. Owen Dixon K.C. (as he then was) before the last of those Commissions. So far as items 47 and 79 are concerned I propose to allow the objection. Solicitors are responsible for giving proper and adequate instructions to counsel: it is not sufficient to collect a mass of documents and pass them over to counsel to do their best or their worst with. It is a solicitor's duty to instruct counsel, and it was necessary in this case, in order to instruct them fully, to peruse these reports and to select relevant portions of them for the purpose (inter alia) of cross-examination of departmental witnesses who had given evidence before the Royal Commissions. If the solicitor in this case had come before the Court without having done this work, he would have neglected his duty. It was manifest that the very thing which had been submitted to Royal Commissions for solution was now propounded to the Court. I therefore allow items 47 and 79; and, agreeing with appellant's objections as to items 83 and 87, I also allow them, provided, however, that they are not included in item 79.
The third group is really comprised of item 118 relating to counsel's fees and refreshers. The first question here involved is whether the appellant was justified in sending Victorian counsel to the hearing of the appeal in Brisbane. In my opinion, and I was the Judge who heard the appeal, such a course was justified. This is a Federal Court and the case was a Federal case, and a litigant in proper circumstances is entitled to select counsel from within the Commonwealth and, in my opinion, such circumstances were present in this case.
This was not an ordinary case. It was a test case and the judgment fixed the method of valuation of Crown leaseholds and has been acted upon since by the Commissioner and taxpayer appellants in the preparation and conduct of their respective cases. Mr. Owen Dixon K.C. (as he then was) and Mr. Russell Martin having appeared before the last of the Royal Commissions were on that account considered by the solicitor, and on good grounds, to be eminently fitted to handle such a case as this. It was a wise and proper precaution for the solicitor to brief the counsel he thought the most familiar with this type of case. I am not dealing now with individuals, I am dealing with a principle: the case was of great importance both to the Department, to the appellant and to Crown leaseholders in general; it dealt with the method of valuation of great tracts of land and involved questions both of law and fact. In my opinion appellant might reasonably have asked for the costs of three counsel and not those of two. The second question raised by this objection, namely, the allowance of refreshers beyond the maxima fixed by O. LIV., r. 60, of the High Court Rules, turns on the effect of r. 42 of that Order upon r. 60. I think it is clear that r. 42 gives the taxing officer a discretion in special circumstances, such as there are in this case, to go beyond the maxima for refreshers set out in r. 60. (See Cavendish v. Strutt[4] ; Stewart & Co. v. Weber[5] , and In re Ermen; Tatham v. Ermen[6] .) These cases were all decided long before the present High Court Rules came into being, and the Judges who drew up these Rules must be taken to have known the English Rules (upon which our Rules are based) and the construction applied to those English rules, and this construction must be taken to have been adopted in the High Court Rules. For these reasons I propose to refer item 118 back to the learned District Registrar on the question of quantum and with the observations that this case is one which justifies the briefing of counsel from one State to attend the hearing in another State and that r. 60 is subject to r. 42.
Appeal dismissed.
Solicitor for the appellant, W. H. Sharwood, Crown Solicitor for the Commonwealth.
Solicitors for the respondent, Whiting & Byrne.
3. (1903) 2 Ch. 156, at p. 163.
6. (1903) 2 Ch. 156, at p. 163.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCA/1930/51.html