Gallo v The Hon Justice Dawson

[1992] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MSS of 1988

B e t w e e n -

KATHLEEN GALLO

Plaintiff

and

THE HONOURABLE JUSTICE DAWSON

Defendant

Review of Taxation

DEANE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 25 SEPTEMBER 1992, AT 11.21 AM

Copyright in the High Court of Australia

Gallo(6) 1 25/9/92

MRS K. GALLO in person. Your Honour, I have a review

application concerning a matter of taxing.

HIS HONOUR:  I notice Mr Nettle is in the list.

MRS GALLO:  Supposed to be here opposing me, yes. I believe

he was expecting that the present case will take

some time.

HIS HONOUR:	I think we all were.
MRS GALLO:	He probably went away to do something else, I do

not know.

HIS HONOUR:  I have read the papers in this matter, but it

was a few days ago. Why do you not just sit down

and I will go through them again. Perhaps by then

Mr Nettle will have arrived. Indeed, I think he

has arrived.

MR G.A.A. NETTLE:  I do apologize, Your Honour. (instructed

by the Australian Government Solicitor)

HIS HONOUR:  That is all right, Mr Nettle. I have just said

to Mrs Gallo that I have read these papers, but I

will just take a moment to make sure I am familiar

with everything in the file. Mrs Gallo, I have

your affidavit of May 1990. That is the only

affidavit you have filed in this matter, is it?

MRS GALLO: That was the only affidavit, Your Honour.

HIS HONOUR:  Mr Nettle, there is no affidavit filed in this

matter on your side of the record, is- there?

MR NETTLE: That is correct, Your Honour.

HIS HONOUR: Yes, Mrs Gallo?

MRS GALLO: 

Your Honour, I have received - - -

HIS HONOUR: 

Can I just say at the beginning, in an effort

to direct what you want to say, you will appreciate
that in terms of taxing bills of cost the officers

of the registry have experience in terms of what is

a filing fee and that sort of thing, which I must

confess I personally have not any great experience

in because we do not tax costs; that is done by
the registry. That means that having reached this

stage where the matter has gone for review once in
the registry, the only basis on which you can get

any help from me or intervention from me is if you
can show that the Deputy Registrar has gone wrong

on a matter of principle.  Do you follow what I am

saying?

Gallo(6)	2	25/9/92
MRS GALLO: Yes, Your Honour.

HIS HONOUR:  In other words, if, for example, she were to

allow $40 for a particular item, there would not be

much point in saying to me, "Oh, she should only

have allowed $35", because I really am not

competent to deal with it. But if your objection

is, "Oh, she shouldn't have allowed that $40

because for these reasons it was wrong to allow

it", then that is the sort of thing that you can

attack in these proceedings before me. Having said

that, you say whatever you want to say about any of

the items.

MRS GALLO:  Your Honour, please to make my appeal to you

short to point to the fact that the - - -

HIS HONOUR:  We have as long as you need, Mrs Gallo.

MRS GALLO:  Thank you very much, Your Honour. The objection

was based on the fact, Your Honour, that Crown

solicitors acted on behalf of the defendant and

Crown solicitors are salaried employees of the

government. There is a double charge here where

they been paid for their services as public
servants and they also charge for the case what

they did by their office, but different things are

different.

I think, Your Honour, that this matter needs

certain consideration by on what reason would they

be entitled double charges because they already
paid as salaried employees of the Crown. It is

understandable that counsel, when they been asked

to appear on behalf of the defendant in matters,

that comes probably under different jurisdiction as

far as that goes. But the matter itself that by

some reason what I also find objectionable,

Your Honour, because it seems to be like a vicious

circle, the government interfered - Victorian

government - in certain matters, but they have no
proper reason to do.	I tried to fight them over

many years, Your Honour, without any success

because I am too small to the might of the

government. Their action derived, in which matter

this taxation is concerned, by certain bias what I

alleged because one of the justices who sat on the

matter was prior government executive officer of

the Victorian government.

The action, again, was defined by Crown

Solicitors who are again members of the Government

Constitution or rather the set-up, and because of

that tradition, Your Honour, it failed somehow, unfair and unjust the way it has today, when so many people are out of job and live under the

rather miserable conditions, some of us are so well

Gallo(6) 3 25/9/92

off that they can even make it double - their

income.

The objections are based on that point,

Your Honour. We went through with the Registrar in

Melbourne on several points what she saw by the document what was submitted by the Crown Solicitors

as the costs of the case - bill of costs - that it

was so freely and loosely accounted for everything,

double charged for every single thing, ..••. to have

the matter from 10,000 brought down to 5000

something, which is a big difference. But she

could not •..•. for there is a problem what I put

before Your Honour, that if the Court finds that

fair and equitable that somebody should charge

double or derive double earning from a proceeding

of that sort.

HIS HONOUR:  The problems you have, there are two of them:

one is that there is a section of the Judiciary Act

which expressly says that the Government Solicitor

can appear for somebody who is sued as an officer

of the Commonwealth.	I do not know if you have
looked at that section?

MRS GALLO: Yes, Your Honour.

HIS HONOUR:  I have it here· if you would like to see it

again.

MRS GALLO:  I am aware of that section, Your Honour, which

says "can 11 - does not have to, it can.

HIS HONOUR:  No, but the problem is, from your point of

view, once the Australian Government Solicitor does

appear, I am bound by that section in that I am

bound by Acts of Parliament and I cannot say it was

inappropriate for him to appear. Now, once the

Government Solicitor does appear and that section

applies, the ordinary rules allow, not the person	in the employ of the government to get the benefit
of a bill of costs but the department consisting of
the Government Solicitor and those employed by him
to get the advantage.

I am not saying that to discourage you, I am

just trying to make sure you understand the problem

that you are facing on this argument.

MRS GALLO: Yes, Your Honour. Even in this case,

Your Honour, the Act does not say that the Crown

Solicitor has to, it says it can and has operated

to do so, and I am not disputing that whatsoever

because those are laid down in the law and I have

nothing to say about it any further, but that does
not mean that he actually has to, and it gives, as

I mentioned, Your Honour, a strange vicious circle,

Gallo(6) 4 25/9/92

it is going all around in the same direction

wherever I turn I am corning against the same

problems.

This was one of the matters and I intended to

bring the matter before Your Honour to find out

would that be. The other matter, Your Honour, what

I intend to mention: that the judgment, which was made by His Honour Mr Justice Wilson, mentioned no

taxation; said the taxation meant an extra cost on the top of the bill which would have been saved if the bill of costs originally would have been

prepared with good conscience and realizing on the

list of costs which is a printed form and it says

clearly what is allowed and what is not allowed to

charge.

Apparently, the matter was overlooked in the

belief that being a lay person anything can be

done, anything can be turned from the best way in

the interests of the other party. I feel that this

part, which covers extra appearances and the extra

appeal, could have been all saved by the proper set

out of the bill of cost.

HIS HONOUR:  Reading your affidavit, as I followed it, there

were four main problems or objections that you

took. The first was the one you have just

mentioned, that is that Justice Wilson's order did

not expressly mention taxation. The second was

that because of Justice Dawson's position, it was

inappropriate for the Government Solicitor to

appear for him. The third was that one of the

items related to general care and conduct. I think

the way you put it is that there is an element of

double charging in that. As I understand it, there

is only one other objection you have mentioned in
your affidavit which you have not mentioned this

morning and that is that the instructions were

given before the writ was served on you.

MRS GALLO:  Yes, Your Honour.

HIS HONOUR: ·aut that is a very minor one - I think that is

$106.00 - in the context of the overall bill. Is there anything further that you would like to say

on any of those matters, or have I missed any

objection that you want to raise? In other words,

I have mentioned four; are there any other ones

that I have missed in reading the papers?

MRS GALLO:  Your Honour, I had a list of matters

concerning·- - -

HIS HONOUR:  I was just trying to bring them into broad

headings.

Gallo(6) 5 25/9/92

MRS GALLO:  I believe, Your Honour, those have the four

matters which mainly concern the present appeal.

HIS HONOUR: 

You realize, as I said to you, I can only deal

with questions of principle, and it is very hard to
upset a taxation of bill of costs in terms of

principle. But is there anything further you would
like to put because if there is feel free, as I

say, to take as much time as you like.

MRS GALLO: At the present, Your Honour, I cannot think of

anything further that I could add to that

programme, because if Your Honour finds that it was
preferred to have the matter attended by the Crown

Solicitors and due to the law concerning their

authority, it is not a matter which could be, we say, argued, if it was done correctly or not and they are entitled to their charges. The matter

left only that the taxation which was not necessary

and the different items which it related to that

matter should be considered as special points.

HIS HONOUR:	Thank you, Mrs Gallo.
MRS GALLO:	Thank you, Your Honour.
HIS HONOUR:	Mr Nettle, I - no, there are no matters on

which I need to trouble you.

MR NETTLE: If the Court please.

HIS HONOUR: 

The plaintiff, Mrs Gallo, commenced an action

against the defendant, the Honourable
Justice Dawson, in this Court "claiming damages in

consequence of bias".  On 19 October 1988,

Justice Wilson ordered that the action be summarily

gismissed with costs.  On 2 March 1990, a bill of

the defendant's costs was taxed by a Deputy

Registrar of this Court. The plaintiff lodged a

list of objections to the taxed bill and applied

for review of the taxation in respect of the items

objected to. The taxing officer, on review,
pursuant to Order 71 rule 88, reconsidered the

taxation in relation to the objections. She

allowed some and disallowed others.

By summons dated 26 April 1990, the plaintiff

applied, pursuant to Order 72 rule 89, to a Justice

in Chambers for an order that the taxation of the

bill of costs be reviewed "in items and the grounds

of objection as set out" in a supporting affidavit

of the plaintiff sworn on 28 May 1990. It is this

application. for an order to review which is now,

somewhat belatedly, before me. Order 71 rule 89(2)

provides that the Justice hearing the application

"may thereupon make such order as the Justice

thinks just." That sub-rule must, however, be

Gallo(6) 6 25/9/92

construed in the context of the long-established

practice that, particularly in a case where there

is provision for reconsideration by the taxing

officer, a Judge will only interfere with the

taxation of a bill of costs by a taxing officer in

circumstances where there has been a mistake of

principle, an abuse of discretion or clear error or

injustice (see, e.g. Re Morrison; ex parte Official

Assignee,
(1901) 17 WN(NSW) 182, at page 183; p. 667; Norton v Herald, (1913) 7 CLR 76 at

p. 80; and the cases referred to in Saddington,

Taxation of Costs between Parties, Law Book Co.,

(1919), pp. 118-127.

As I understand the plaintiff's supporting

affidavit and what has been said in the course of

argument this morning, the plaintiff's objections

to the outcome of the taxing officer's review of
the taxation fall into four groups. They are:

1.       An objection that there was no express mention of taxation of costs in the order of Justice Wilson. (I shall, for ease of

reference refer to this as "Objection 1").

2.     A general objection to the bill of costs

as a whole, based on the suggested
inappropriateness of the Australian

Government Solicitor representing the

interests of a government official, such

as Justice Dawson, on a charge of bias.
The reasons for such suggested
inappropriateness appear to be based on
perceptions of aggravated bias, additional

cost, inequality of resources and stifling
or silencing of the substantive issues of

claim in the case. (I shall refer to this

head of objection as "Objection 2").

3.      An objection to item 1, (Instructions to

Defend - $106.10), on the basis that the

instructions were given prior to the service of the writ ("Objection 3").

4.       An objection to item No 171 in the bill

(general care and conduct - $500) on the
basis that it is not permissible to charge
extra for services for which the

Australian Government Solicitor, as a
government employee, was already, to quote
from Mrs Gallo's affidavit, "on a salary

as such" ("Objection 4").

I have considered all of the above objections.

I have come to the conclusion that the taxing

officer did not fall into any error of principle or

Gallo(6) 7 25/9/92

abuse any discretion in relation to any of them.

Nor do I think that there.is to be discerned any clear error or injustice in any of the relevant

rulings made by the taxing officer. My conclusions

in that regard suffice to dispose of the
application. Since Mrs Gallo is without legal
representation, however, I think it desirable that
I go further and indicate that it positively
appears to me that the taxing officer's decision in

relation to each of the matters raised by the

objections was correct. It is unnecessary that I

do more than briefly indicate why that is so.

Objection 1 (i.e. that no specific order was

made by Justice Wilson for the taxation of costs)
is without substance. Order 71 rule 79(a)

expressly provides that where a proceeding is
dismissed with costs "the taxing officer may tax
the costs without a further order ••• "

Objection 2 (i.e. "the inappropriateness of the involvement of the Australian Government

Solicitor to defend in a personal case of bias")

is, in my view, also without substance. As I

explained to Mrs Gallo in the course of argument,

the involvement of the Australian Government

Solicitor was authorized by section 55E(3)(f)(i) of

the Judiciary Act 1903 (Cth) for the reason that

the action was against an officer •.. of the

Commonwealth.

Objection 3 challenges the allowance of

$106.10 for instructions to defend on the ground

that - and again I quote from Mrs Gallo's

affidavit - "instructions were given prior to the

service" of the writ. It was, in my view,

correctly disposed of by the taxing officer as

follows:

The Defendant is clearly entitled to costs on the scale for instructions to defend. That	the instructions were given before service of
the writ on the Australian Government
Solicitor is immaterial. It is evident from
the Bill that the Defendant became aware of the writ and gave instructions shortly after
it was issued. A letter was then forwarded to
the Plaintiff advising her that it would
accept service on the Defendant's behalf and
service was subsequently effected in that
manner.
Objection 4 (i.e. "not permissible to charge

extra for service for which the solicitor, as a

government employee already receives a salary") is

similarly devoid of merit. The fees charged or

claimed by the Australian Government Solicitor are

Gallo(6) 8 25/9/92

not charged or claimed by him or her in his or her

personal capacity.

Accordingly, the application for an order for

review is dismissed.

MR NETTLE:	If the Court pleases, I ask for costs of the application.
HIS HONOUR:	Mrs Gallo, in terms of what I have said, I do

not think there is much you can say about costs of

this application, is there?

MRS GALLO:	No, not really, Your Honour.
HIS HONOUR:	In view of what you said in the Full Court

earlier, it may not be very important to you

anyway, but perhaps I should not have said that.

Very well, the application for an order for review

is dismissed with costs. To avoid future

misunderstanding, I note that that means that costs

may be subsequently taxed pursuant to Order 72

rule 79, without the need for any further order.

Mrs Gallo, those reasons will be reproduced by

the Court recording service.

MRS GALLO:	I understand.
HIS HONOUR:	I realize you will not have been able to absorb

them fully as I gave them but you will be able to

get a copy and to read them. Do I gather, from

what you said earlier, that you do have some

financial difficulty in terms of getting copies of

transcripts and things?

MRS GALLO: Not really, Your Honour. This is not - I am

diminished altogether as a human being but such a

minor amount, Your Honour - - -

HIS HONOUR: Because if you have any difficulty, I will make

an order that they be made available to you free of

charge.

MRS GALLO: But please, Your Honour, what I would like to

mention to Your Honour: do I apply to Your Honour

for an arrangement to pay it in terms because I

have not got this kind of money nowhere whatsoever.

So how do I go about that matter? Do I apply to Your Honour to make an order on it or agree with

the party?

HIS HONOUR:  I cannot give you legal advice, Mrs Gallo.

MRS GALLO:  I put it wrongly, Your Honour. If I ask

Your Honour to make an order to accept my

Gallo(6) 9 25/9/92

proposition of term payment, could that be put into

the order?

HIS HONOUR:  No, it would be best if you - I could not make

such an order on this application. It is something

you should discuss with the Australian Government

Solicitor.

MRS GALLO:  Thank you very much, Your Honour.

AT 11.58 AM THE MATTER WAS ADJOURNED SINE DIE

Gallo(6) 10 25/9/92