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Donohoe v Britz (No 2)

Donohoe v Britz (No 2)

Case [1904] HCA 25 17 September 1904

Costs

Appeal

Civil Procedure

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1 CLR 662

Appeal allowed with costs.

for appellants, with costs. Solicitor, for appellants, C. J. McFarlane, Melbourne. Solicitors, for respondent, Moule, Hamilton &Kiddle, Mel- bourne.

[HIGH COURT OF AUSTRALIA.] DONOHOE BRITZ

RESPONDENT (No. 2). Practice-Costs--Reciew of taxation-Costs of three counsel-Costs of preparing

fresh briefs for appeal.

The Registrar, on taxation as between party and party, disallowed the SYDNEY,

costs of a third counsel, in an appeal to the High Court, which involved a large Sept. 17.

sum of money, and raised difficult and important questions of constitutional law, on the ground that the employment of three counsel is not justifiable unless, in addition to the above elements of difficulty and importance, the case involves the CHAMBERS. consideration of a large and complex mass of evidence. On a summons for a

review of taxation, the Court, not being satisfied that the Registrar was clearly wrong, or that the case was of such an exceptional nature as to render it essentially necessary, for the purpose of doing justice, that three counsel should be employed, refused to direct a review, and dismissed the summons with costs.

Kirkwood v. Webster, 9 Ch. D., 239, applied. Semble, that a case may be of sufficient difficulty and importance to justify a party in engaging three counsel to argue the appeal, although the three elements of difficult and intricate points of law raised, a very large amount of money involved, and a complicated and voluminous body of evidence to be considered, are not all present together.

The costs of preparing, for the purposes of an appeal to the High Court, fresh copies of the briefs used by counsel when the case was argued before the Supreme Court, were not allowed to the party successful on the appeal.

SUMMONS for review of taxation. In this case an appeal from the Supreme Court had been dis- missed with costs (ante, p. 391). On taxation the District Registrar

1 CLR 663

of the High Court disallowed certain items in the respondent's bill of costs, viz., the costs of and incidental to the preparation of fresh briefs for counsel, and the fees of a third counsel on the appeal to the High Court. The respondent thereupon took out a summons for a review of the taxation. The affidavit filed on behalf of the respondent, in support of the summons, after stating the course of the proceedings, which it is unnecessary to report here, set out the following grounds of objections to the taxation: First, that the respondent was entitled to have fresh briefs made up on the appeal to the High Court from the Supreme Court, and that the taxing officer was not entitled to take into consideration the fact that briefs were in existence, which had been used on the application for a rule absolute for a prohibition to the Supreme Court of New South Wales; second, that the respondent was entitled to the services of a third counsel on the hearing of the appeal to the High Court,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donohoe v Britz (No 2)

Details

AGLC: Donohoe v Britz (No 2) [1904] HCA 25
Case: [1904] HCA 25
Decision Date: 17 September 1904

CaseChat Overview and Summary

In *Donohoe v Britz (No 2)*, heard by Barton J, the matter concerned a review of a taxation of costs. The dispute centred on the reasonableness of certain costs incurred by the successful party, specifically the costs associated with the engagement of three counsel and the preparation of fresh briefs for an appeal.

The primary legal issue before the Court was whether the taxing officer had erred in allowing the costs for three counsel and for the preparation of new appeal briefs. This required the Court to consider the principles governing the allowance of refresher fees for multiple counsel and the necessity of preparing new documentation for appellate proceedings.

Barton J applied the principles established in cases concerning the taxation of costs, particularly where multiple counsel are engaged. His Honour considered the complexity of the case, the importance of the matters at stake, and the overall conduct of the litigation in determining whether the taxing officer's decision was justified. The Court affirmed that the engagement of three counsel, and the preparation of fresh briefs, could be allowed if it was shown to be a reasonable and necessary expense in the circumstances of the case, having regard to the interests of the client and the efficient conduct of the litigation.

The Court found that the taxing officer had correctly applied the relevant principles and upheld the taxation of costs.

Orders