Hally v Dennis [1955] HCA 41; (1955) 95 CLR 661 (3 August 1955)

HIGH COURT OF AUSTRALIA

HALLY v. DENNIS [1955] HCA 41; (1955) 95 CLR 661

High Court

High Court of Australia
Dixon C.J.(1), Webb(1), Fullagar(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

High Court - Special leave to appeal - From order imposing costs on successful defendant - Order based upon determination of question of fact and introducing a discretion - Costs Act of 1867 (Q.).

HEARING

Brisbane, 1955, August 2, 3. 3:8:1955
APPLICATION for special leave to appeal from the Supreme Court of Queensland.

DECISION

The judgment of the Court was delivered by DIXON C.J. : -
This is an application for special leave to appeal from so much of an order appeal as dealt with the costs of the proceedings before the primary judge. The Full Court awarded the costs to the applicant in those proceedings notwithstanding that the applicant failed. The application was by way of summons under the Costs Act of 1867 by a client against a solicitor for the delivery of a bill of costs and the delivery up of documents on payment of what was found on taxation to be due under such bill of costs. At the hearing of the summons the solicitor made it clear that he did not claim any professional costs against his client and in the end that he did not claim any disbursements. The learned primary judge, notwithstanding the solicitor's disclaimer, made an order in the terms of the summons. The Full Court, on appeal, discharged that order on the ground that once it appeared that no claim was made by the solicitor for professional costs or disbursements made in his professional character the order ought not to have been made or, as the Full Court expressed it, that there was not jurisdiction to make it. In allowing the appeal and discharging the order the Full Court nevertheless directed that the client should recover against the solicitor her costs of and occasioned by the order of the learned judge. The application for special leave to appeal is made against that part of the order. It is in that manner that it was opened and we think that it must be confined to that question. (at p663)

2. We heard a full discussion in support of the application because we thought as the application was opened that the order of the Full Court infringed the rule which I shall read from the judgment of Swift J. delivered on behalf of himself and Macnaghten J. in London Welsh Estates Ltd. v. Phillip (1931) 144 LT 643 : "There is no power in the court to make a successful defendant pay the costs of an unsuccessful plaintiff. The reason is obvious : it is the plaintiff who brings the defendant into court. The authority of the proposition, I have stated, is to be found in the judgment of Brett L.J., in the case of Re Foster v. Great Western Railway Co. (1882) 8 QBD 515 " (1931) 144 LT, at p 644 . To that decision may be added the authority of Dicks v. Yates (1881) 18 Ch D 76 . (at p664)

3. The discussion of the present case showed that there was a real question of fact as to the stage at which it was made clear by the solicitor that he made no claim, at all events, to disbursements. We have gone through, with the aid of counsel, the passages in the transcript which show how the question developed. We think we ought not to grant special leave on such a matter of fact. The importance of that matter of fact is this : if the sole ground for holding that an order under the Costs Act of 1867 ought not to have been made was that at the hearing of the summons the solicitor disclaimed the intention to charge, then it might have been open to the learned judge at that hearing to require him to pay the costs of the summons. It would be otherwise if antecedently there was no retainer or employment at all for remuneration and no liability in the client to repay disbursements. But if it rested on the solicitor's disclaimer or abandonment during the proceedings and on nothing more, then it might have been competent to dismiss the summons on payment of costs. There is in the material which we have examined a great deal of room for the view that it was not until a very late stage in the proceedings that a complete abandonment was made of an intention to make any charge in any circumstances and for the view that it was only then that nothing remained that would justify the judge's order which was discharged in the Full Court. The learned judges in the Full Court exercised their discretion in the manner which we have stated on their view of the various steps which the solicitor had taken or omitted. We do not think that it would be right to grant special leave to review either against the determination of the question of fact or the exercise of that discretion. (at p664)

4. I need not refer to the principles upon which we exercise the power to grant special leave. It is, of course, well known that special leave is not readily granted to review any order in relation to costs, let alone one which depends in any way upon discretion. (at p664)

5. But there is one matter to which their Honours referred in exercising their discretion which we think should be mentioned. In the judgment of Matthews and Townley JJ. there is a reference to the affidavit made on 24th May 1954 to the effect that it appears to be deliberately phrased to hide the true position. An examination of the affidavit leaves us with a strong impression that that statement has no sufficient justification and that the affidavit does not bear that complexion. But, putting that matter aside, there was ample material in the failure to answer letters and otherwise for the exercise of a discretion and in any case we would not grant special leave to examine such a question. (at p665)

6. On a review of the whole circumstances of the case we think that the case is not one in which we should grant special leave, notwithstanding the prima-facie impression which led us to allow a very full argument of the matter. (at p665)

7. Special leave should therefore be refused. (at p665)

ORDER

Special leave to appeal refused.