Clark Tait & Company v Federal Commissioner of Taxation [1931] HCA 26; (1931) 47 CLR 142 (9 August 1931)

HIGH COURT OF AUSTRALIA

Clark, Tait and Company and Another Appellants; and The Federal Commissioner of Taxation Respondent.

H C of A

9 August 1931

Rich J.

Ferguson, for the appellants.

De Baun, for the respondent.

The following written judgment was delivered:—

Aug. 9

Rich J.

I have had the advantage not enjoyed by the learned Registrar of hearing a number of land tax cases, and am therefore in a better position to appreciate matters which perhaps have not been brought to the attention of the Registrar: the discretion of the Court is to be exercised upon its own knowledge of the circumstances of the particular case (Western Australian Bank v. Royal Insurance Co.[1]). I am at all times loath to interfere with the decisions of experienced taxing officers, but the case under consideration was exceptional—one of great importance and complexity, and I think that the learned Registrar has, in some of the items under review, proceeded on a wrong principle, although the Court may control any decision of a taxing officer (Saddington, Taxation of Costs between Parties, at p. 135).

Item 107 (McLeod's Case[2]). For some years the method of land valuation under the Land Tax Acts had been under discussion in the Queensland Lands Commission and in a series of cases which came before me. In Jowett v. Federal Commissioner of Taxation[3] I pointed out that the Commissioner was not employing the right method, and I endeavoured to lay down what was required by the Land Tax Acts. The next cases set down for hearing in Brisbane were McLeod's Case and the case now under review. This case was adjourned to Sydney and McLeod's Case was then heard and determined. I found that the Commissioner had profited by my suggestions. The cases mentioned were interconnected and inter-dependent—concerned with the same subject. Whether the land be freehold or leasehold the principle of valuation is the same although the arithmetical calculation—a matter which does not come before the Court—is different. When, therefore, the present case came on for hearing it was important for the appellants to know what tactics (adopting the word used by the Registrar) the Commissioner had employed in McLeod's Case. That being so, I do not consider that it was unnecessary or over-cautious on the part of the appellants to incur the expense of the copies of evidence in McLeod's Case. I allow the objection.

(Pegler). The fact that a witness was not examined does not disentitle a party to the costs attendant on his proof and attendance (London, Chatham and Dover Railway Co. v. South-Eastern Railway Co.[4]; Levetus v. Newton[5]; Gregg & Co. v. Gardner[6]). Counsel conducting a case may, seeing the course it is taking, in his discretion see fit not to call a witness (compare Clark v. Malpas [No. 2][7]). Pegler was no doubt suffering from influenza but his recovery was probable. The case was of such importance that another expert witness was not over-burdening the case or in the nature of a luxury. I allow the objection.

(Cameron). During the hearing of cases of this class the number of sheep carried on the subject land, travelling sheep, agisted sheep, mortality, weight of clip, prices, costs and a number of other details are discussed and the books of the taxpayer are of the greatest importance in determining these matters. Cameron as the manager of part of the subject land and intimately acquainted with its working was essential to the proper and prudent conduct of the case even although he was not called as a witness. I allow the objection.

Items 110, 113 (Documents). I am not disposed to interfere with the Registrar's decision with regard to these items.

Items 131-133, 145, 146, 153, 155, 156, 163, 164. I think the Registrar was quite right in disallowing the fees paid for 26th-28th July before the hearing of the case began. They are or should be covered by the fee on the brief. Similarly I disallow refreshers paid for Saturday and Sunday. On the other hand I shall allow the fees paid during the adjournment (except Saturday and Sunday) which I granted after the taking of evidence was concluded. Land tax cases are usually very long and complicated—there is a mass of oral evidence and exhibits—the latter comprising comparative tables of figures prepared by both sides which require careful analysis. I have found during a long experience that addresses are much shortened and more effective if counsel are allowed a breathing space for preparation. I treat it as part of the hearing. This, I think, covers 8th and 9th August. I also think that the Registrar has not sufficiently taken into consideration the complexity of the case and the fact that counsel from another State were engaged in it. I consider, therefore, that the refreshers or increased fees paid to senior counsel should be 35 guineas and those for junior counsel should be on a proper proportion. To sum up, the Registrar was right in disallowing the increased fees and refreshers paid to counsel on 26th, 27th and 28th July and 3rd, 4th, 10th, 11th and 13th August. On the other days such fees and refreshers should be allowed on the scale I have mentioned.

Items 203 and 205. I make no order.

Items 248-250. I consider this was a proper case for the attendance on taxation of the Melbourne solicitor.

The item as to Mitchell's fees and expenses was properly not pressed.

I allow the objections specified and refer the matter back to the taxing officer to vary his certificate accordingly. There will be no order as to costs.

Order accordingly.

Solicitors for the appellants, Whiting & Byrne.

Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth.

[1] [1908] HCA 71; (1908) 7 C.L.R. 385, at p. 388.

[2] Unreported

[3] [1926] HCA 22; (1926) 38 C.L.R. 325.

[4] (1889) 60 L.T. 753.

[5] (1883) 28 Sol. J. 166.

[6] (1897) 2 I.R. 122.

[7] [1863] EngR 107; (1863) 31 Beav. 554, at p. 558; [1863] EngR 107; 54 E.R. 1253, at p. 1255.