Alexander Stewart and Sons Limited v Robinson (No 2)

Alexander Stewart & Sons Limited brought an action in the Supreme Court of Queensland, exercising Federal jurisdiction, against Henry Macnamara Robinson, the Acting Collector of Customs, Brisbane. The parties agreed to state a special case for the opinion of the Court, which was then directed by a judge of the Supreme Court to be argued before the Full Court of the High Court of Australia under section 18 of the Judiciary Act 1903-1920. The High Court ultimately determined that the costs of the case and the action should be paid by the defendant. Subsequently, the costs were brought before the District Registrar of the High Court in Brisbane for taxation, leading to objections from both parties and summonses to review the taxation.

The legal issues before the High Court concerned the proper taxation of costs in a matter that originated in a State Supreme Court exercising Federal jurisdiction but was subsequently heard by the High Court. Specifically, the court had to determine whether the costs related to the proceedings before the High Court should be taxed by the High Court's officers, and conversely, whether costs relating to the Supreme Court proceedings should be taxed by the Supreme Court's officers. Further issues included the allowance of costs for drawing instructions or observations for counsel on the special case, and the costs of drawing instructions for a brief in the action itself. The court also considered the circumstances under which the costs of sending counsel from one State to argue a pure matter of law before the High Court in another State would be allowed on taxation.

Starke J. held that costs incurred in relation to proceedings before the High Court should be taxed by the proper officer of the High Court, while costs relating to proceedings before the Supreme Court should be taxed by the proper officer of that State court. Consequently, the allowance of costs for drawing instructions for the brief in the action was set aside, as these related to the proceedings in the Supreme Court and should be taxed there. Regarding the costs of sending counsel from Brisbane to Melbourne to argue the special case, Starke J. found that while such expenses are generally not allowed unless very special circumstances are proved, in this instance, the urgency of the matter, the need for personal consultation with counsel familiar with the case's details, and the limited availability of court dates constituted such special circumstances, justifying the allowance of these costs.

The court ordered that the allowance of costs for instructions for the brief in the action be set aside and remitted to the District Registrar with a direction that it should not be allowed as part of the costs of the proceedings in the High Court, with the parties to exercise their rights regarding this item as advised. The parties were ordered to abide their own costs of the summonses to review the taxation, as neither party had wholly succeeded.