Giacci Bros Pty Ltd v BUNBURY-HARVEY Regional Council
[2001] WASCA 282
•12 SEPTEMBER 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: GIACCI BROS PTY LTD -v- BUNBURY-HARVEY REGIONAL COUNCIL [2001] WASCA 282
CORAM: MURRAY J
ANDERSON J
WHEELER J
HEARD: 24 & 25 JULY 2001
DELIVERED : 12 SEPTEMBER 2001
FILE NO/S: FUL 166 of 2000
BETWEEN: GIACCI BROS PTY LTD
Appellant (Defendant)
AND
BUNBURY-HARVEY REGIONAL COUNCIL
Respondent (Plaintiff)
Catchwords:
Local Government - Powers, functions and duties of councils generally - Fees and charges - Validity of fee for use of disposal site - Power to enter contract with site users
Legislation:
Local Government Act 1995, s 6.2, s 6.16, s 6.17, s 6 19
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant (Defendant) : Mr M J Buss QC & Mr J C Curthoys
Respondent (Plaintiff) : Mr N W McKerracher QC & Mr J A Scurria
Solicitors:
Appellant (Defendant) : Slee Anderson Pidgeon
Respondent (Plaintiff) : Joe Scurria & Associates
Case(s) referred to in judgment(s):
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Re K L Tractors Ltd (In Liq) (1961) 106 CLR 318
Case(s) also cited:
Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54
Ashbury Carriage & Iron Co v Riche (1875) LR 7 HL 653
Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424
Barwick v Law Society of New South Wales [2000] HCA 2
Bell Houses Ltd v City Wall Properties Ltd [1966] 1 QB 207
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363
Breckenridge Speedway Ltd v The Queen in Right of Alberta [1970] SCR 174
Brenner v First Artists Management Pty Ltd [1993] 2 VR 221
Cairncross v Lortimer (1860) 3 Macq 827
City of Camberwell v Cooper [1930] VR 289
Commonwealth v Verwayen (1990) 170 CLR 394
Communities Economic Development Fund v Canadian Pickles Corp [1992] 1 WWR 193
Coney v Choice [1975] 1 WLR 422
Coogee Esplanade Surf Motel Pty Ltd v Commonwealth of Australia (1983) 50 ALR 363
Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407
Foran v Wight (1989) 168 CLR 385
Garrard v James [1925] Ch 616
Giumelli v Giumelli (1999) 196 CLR 101
Grunwick Processing v ACAS [1978] AC 655
In Re Coltman (1881) 19 Ch D 64
Kathleen Investments (Australia) Ltd v The Australian Atomic Energy Commission (1977) 139 CLR 117
Kindersley District Credit Union Ltd v Dahl [1992] 3 WWR 209
La Caisse Populaire Notre Dame Ltee v Moyan (1967) 61 DLR (2d) 118
Marshall v Director-General, Department of Transport [2001] HCA 37
Morton v Union Steamship Company of NZ (1951) 83 CLR 402
National Telephone Co Ltd v Constables of St Peter Port [1900] AC 317
Owners "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 120 ALR 12
Parramatta City Regional Council v Palmyra Freeholds [1974] 2 NSWLR 83
Pavey v Matthews and Paul (1987) 162 CLR 221
Placer Development Ltd v Commonwealth (1969) 121 CLR 353
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Eaves; Eaves v Eaves [1940] Ch 109
Re K L Tractors Ltd (In Liq) (1961) 106 CLR 318
Rolland v Caisse deconomie Notre-Dame de Quebec (1895) 24 SCR 405
Rothmans of Pall Mall (NZ) Ltd v Attorney-General [1991] 2 NZLR 323
Seven Cable Television Pty Ltd v Telstra Corp (2000) 171 ALR 89
Shanahan v Scott (1977) 96 CLR 245
Spence v Teece (1982) 61 FLR 68
SS Constructions v Ventura Motors [1964] VR 229
Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532
Sydney Municipal Regional Council v Campbell [1925] AC 338
Tasker v Fullwood [1978] 1 NSWLR 20
Taylors Fashions Ltd v Liverpool Trustees Co [1982] QB 133
Unley City Corp v South Australia (1996) 67 SASR 8
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Werribee Regional Council v Kerr (1928) 42 CLR 1
Williamson v L & N W Railway Co (1879) 12 Ch D 787
MURRAY J: I have read in draft the reasons for decision to be published by Anderson and Wheeler JJ. They express very adequately for me the views to which I have come. I have nothing therefore to add. I agree that the appeal should be dismissed.
ANDERSON J: I have had the advantage in reading in draft form the judgment of Wheeler J. I agree with it. I wish to add only the following observation. As I understood the argument, one of the appellant's main contentions was that there had been no valid imposition of fees and charges by this regional council because the purported adoption of the annual budget was invalid as being out of time. With respect, I think, this contention involves a non sequitur. Although it is provided in s 6.16(3) of the Local Government Act 1995 that the fees and charges of a local government are to be imposed "when adopting the annual budget", the imposition of fees and charges is a distinct exercise of authority separate from the adoption of the budget. The heads of power (to impose fees and charges and to adopt a budget) are distinct heads of power conferred by separate sections in the Local Government Act. From this it would follow that the question whether the power to impose fees and charges was validly exercised is not necessarily to be answered by looking to see whether the power to adopt a budget was validly exercised.
The regional council in this case does not seem to have passed a separate resolution to impose fees and charges. As is required by s 6.2(c), the draft budget which was presented for adoption at the meeting of 4 September 1999 contained within it the fees and charges proposed to be imposed, but there was no separate resolution in respect of them as is commonly the case. A single resolution (AB 533) was passed " … to adopt the attached Draft Budget … ". It is, however, not suggested that this is not a proper method by which to impose fees and charges. As it seems to me, therefore, the regional council had performed two distinct functions in passing the one resolution. It had imposed the fees and charges set out in the schedule at page 15 of the draft budget (AB 464) and it had purported to adopt the draft budget as the annual budget. Even if it was too late by 4 September 1996 to validly adopt a budget (which for the reasons expressed by Wheeler J I do not think it was), it would not follow that it was too late to validly impose fees and charges. Even if the resolution was not effective to adopt the annual budget by reason of it being out of time, I do not see why the resolution was not effective to impose the fees and charges.
I agree that the appeal should be dismissed.
WHEELER J: The respondent is a regional local government which was constituted under the Local Government Act 1960 and continued in operation under the Local Government Act 1995. It operates a refuse disposal site at Stanley Road within the Shire of Harvey ("the site"). In September of 1996 the appellant wished to dump at the site a very considerable quantity of refuse material. As a consequence of arrangements made between representatives of the appellant and respondent, the appellant proceeded to dump a large quantity of material at the site over approximately five or six weeks in September and October 1996. The respondent sought to recover from it the sum of $354,990 being the amount invoiced to the plaintiff as a consequence of the dumping operation.
The learned trial Judge found that the appellant was indebted to the respondent in that sum as a result of a contract entered into between the parties which led to the refuse material being dumped. His Honour also found in favour of the respondent in respect of an amount of interest. The amount of interest does not appear to be in dispute.
The grounds of appeal fall into the following categories. First, it is alleged that the learned trial Judge erred in finding that the fee for use of the site had been validly set pursuant to either the Local Government Act 1960 or the Local Government Act 1995. Next, is submitted that his Honour erred in finding that the respondent had power to enter into a contract with users of the site and erred in law and in fact in finding that there was an intention to create contractual relations. It is also submitted that his Honour erred in finding that Re K L Tractors Ltd (In Liq) (1961) 106 CLR 318 was authority for the proposition that even if the fee set was ultra vires, once the respondent had provided the agreed service, it was entitled to recover the agreed fee. There are also challenges to his Honour's findings in relation to alternative arguments of estoppel and quantum meruit. However, as the appellant conceded during the course of argument, it would be necessary for each of the heads of appeal to be successful before his Honour's finding of indebtedness could be overturned.
It is my view that the first of the bases upon which the appeal is brought must fail, and that the fee set by the respondent was validly set. It is therefore unnecessary to consider any of the other grounds of appeal.
It is convenient to set out the provisions of the Local Government Act 1995 ("the 1995 Act") which appear to be relevant to the argument concerning the imposition of the fee for use of the site. They are contained in Pt 6 (Financial management) of the 1995 Act.
Section 6.2 provides, by subs (1), that:-
"Not later than 31 August in each financial year, or such extended time as the Minister allows, each local government is to prepare and adopt*, in the form and manner prescribed, a budget for its municipal fund for the financial year ending on the next following 30 June.
*Absolute majority required."
Subsection (2) provides that in the preparation of the annual budget the local government is to have regard to the contents of the plan for principal activities accepted by it pursuant to s 5.58, and is to prepare a detailed estimate for the current year of expenditure and revenue and income. Subsection (4) provides in detail what the annual budget is to incorporate, including, in par (c), "the fees and charges proposed to be imposed by the local government". Section 6.3 provides for budgets other than the annual budget which may become necessary in certain circumstances. Section 6.4 requires the local government to prepare an annual financial report containing certain information, and by subs (3) provides that "by 30 September following each financial year or such extended time as the Minister allows, a local government is to submit to its auditor [its accounts and annual financial report for the preceding financial year]".
Section 6.16 relevantly provides:-
"6.16Imposition of fees and charges
(1)A local government may impose* and recover a fee or charge for any goods or service it provides or proposes to provide, other than a service for which a service charge is imposed.
* Absolute majority required.
(2)…
(3)Fees and charges are to be imposed when adopting the annual budget but may be -
(a)imposed* during a financial year; and
(b)amended* from time to time during a financial year.
* Absolute majority required."
Section 6.17 provides that in determining the amount of fee or charge for a service or for goods a local government "is required" to take into consideration certain factors which are listed. Section 6.19 provides:-
"6.19Local government to give notice of fees and charges
If a local government wishes to impose any fees or charges under this Subdivision after the annual budget has been adopted it must, before introducing the fees or charges, give local public notice of -
(a)its intention to do so; and
(b)the date from which it is proposed the fees or charges will be imposed."
By virtue of s 3.66 the provisions of the 1995 Act apply in relation to a regional local government as if the participants' districts together made up a single district and the regional local government were the local government established for that district, although the purpose for which the regional local government can do things is limited to the "regional purpose" set out in its establishment agreement. That limitation is not relevant; for present purposes, what is important, is the fact that the regional council is in effect placed in the shoes of a local government for the purposes of the provisions to which I have already referred. A similar provision was found in the Local Government Act 1960 under which the regional council was established, by the combined effect of s 716 and s 717 of that Act. I mention those provisions now, in order to deal briefly with an argument raised by the respondent to the effect that, because the constitution agreement between the Shire of Harvey and the City of Bunbury setting up the respondent purported to confer on it a power to set fees and charges, it was necessary to look only to that constitution agreement and not to any powers or limitations on power which might be found under the relevant Local Government Act. In my view, that argument is misconceived, and under the 1995 Act the respondent has, in relation to the setting of fees and charges, only such powers as a local government would have under the provisions which I have quoted.
The respondent adopted its budget for the 1996/97 financial year, which budget included a fee set at $9 per tonne in relation to the disposal of refuse at the site. It did so, however, on 4 September 1996, outside the time provided for by s 6.2 of the 1995 Act.
The date of the adoption of the budget gives rise to what I understood to be the appellant's primary submission in relation to the alleged invalidity of its fee. That was to the effect that a budget which had not been adopted by 31 August in any financial year was "invalid" and that the fees and charges which it contained therefore could not be regarded as validly imposed. In that case, and since there was no other source of authority for the imposition of the fee, it was asserted that the fee was not a valid one. It was submitted that his Honour was in error in classifying the requirement that the budget be adopted no later than 31 August as directory rather than mandatory.
It may be accepted that the description of a requirement as either mandatory or directory expresses a conclusion, and that the real issue for consideration in each case is whether it was part of the legislative intention that an act done in breach of it should be invalid. In determining that question regard must be had to the language of the relevant provision and the scope and object of the whole statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 [93]. However it be expressed, though, it is my view that his Honour's finding was correct. I draw that conclusion both from the language of s 6.2 and the surrounding provisions and from consideration of the effect which would flow from regarding s 6.2 as directed to the validity of fees and charges imposed in a budget.
Turning first to the way in which the relevant provisions are expressed, it is to be noted that the power to impose a fee or charge is contained in s 6.16. Subsection (3) of that section imposes a general duty to impose fees and charges when adopting the annual budget, but recognises that it may be necessary to impose or amend them during a financial year. While this section emphasises the importance of the annual budget as a device for ensuring the efficient and expeditious consideration of all of the local authority's financial affairs, it also contains a statutory recognition that fees and charges may be imposed at other times. The language of subs (1), which is permissive, and the language of subs (3), are to be contrasted with provisions such as s 6.17, which provides that a local government is "required" to take certain matters into consideration in setting the fee and s 6.19, which provides that a local government "must" give notice in certain circumstances before introducing fees and charges. The contrast is between provisions which appear to be permissive and descriptive of the process to be followed, and provisions in which a specific command is addressed to the local authority, which command is expressly linked to the setting of fees and charges. The question of whether parts of either s 6.17 or s 6.19 are pre-conditions to the validity of a fee or charge can, I think, be left for another day; the point at present is that, in contrast with them, the language chosen for s 6.16 is, apparently deliberately, not expressed in terms of command and not directly purporting to prescribe a procedure for the adoption of fees and charges.
Next, it is to be noted that s 6.2, which provides for the date of the adoption of the annual budget, is to be found in Div 2, headed "Annual budget", which is distinct from Div 5 "Financing Local Government" under which s 6.16 appears. The arrangement is not such as to suggest a legislative intention to link the validity of fees and charges to the date provided for the adoption of the annual budget. In form, s 6.2 bears some similarity to s 6.4(3) which deals with the submission of accounts and annual financial reports. It would plainly make no sense to read s 6.4 as meaning that accounts or annual financial reports submitted after the date provided for their submission were in some way to be regarded as "invalid" or as a nullity, and the similarity of language would suggest that s 6.2 should also not be understood or going to validity.
A consideration of the language of the various sections to which I have referred, together with the structure of Pt 6 as a whole, suggests that the duty to prepare an annual budget no later than 31 August is a general duty cast on a local authority for a variety of reasons, broadly directed to the encouraging of orderly financial management. By contrast, there are also contained in Pt 6 very detailed provisions purporting to describe the way in which fees and charges should be set. The contrast in language between those provisions and s 6.2 suggests that it is unlikely that s 6.2 is intended to be directed to the "validity" of those matters which are contained within the annual budget.
Further, as is pointed out at par 97 of Project Blue Sky Inc, in considering whether a purpose of legislation is that an act done in breach of a statutory provision should be invalid, the question of whether public inconvenience would result from the invalidity of the act is a relevant consideration. In this case, if the deadline of 31 August or such later date as the Minister may allow is regarded as a condition of validity of the budget, or even simply as a condition of validity of the fees and charges contained therein, public inconvenience would follow.
If the Minister were unable retrospectively to validate a late budget by extending time after the budget had been adopted, the prospect arises of fees and charges which were otherwise perfectly proper and fair, and required for the provision of services to residents, being in some circumstances unable to be validated at all (unless s 6.16(3) be read as permitting the local authority to impose fees during the year without ever adopting a valid budget; but in that case, reading s 6.2 as going to the "validity" of the fees contained in a budget would simply be pointless). Alternatively, if the Minister were able retrospectively to extend time and thereby "validate" a budget, those to whom fees were charged under a late budget would be faced with periods of uncertainty as to whether they were required to pay or not. It is unlikely the legislature would have intended either possible outcome.
It is my view therefore that the fact that the annual budget in question was adopted after 31 August affects neither its validity, nor the validity of any fees and charges sought to be imposed by it, including this fee.
There were a number of other arguments also dealing with this part of the Local Government Act which were raised by the appellant. It is, I think, only necessary to deal with them briefly. Although they were not formally abandoned, they were but faintly pressed. Two grounds, which appear to be related, are a submission that there was "no evidence" to suggest that the requirements of s 6.17 were ever "addressed", and a somewhat more robust submission that that "process" had not been "addressed". The short answer to that submission, as counsel for the appellant appeared to recognise during the course of argument, is that the appellant, which asserts invalidity of the fee, bears the onus of establishing its invalidity. It is not for the respondent to produce evidence that it has taken into account those matters for which s 6.17 provides; rather, even assuming for the moment that s 6.17 goes to validity of the resulting fee (which it is not necessary now to determine) it would be for the appellant to adduce evidence that there had been some failure to comply with it.
It was also submitted that there was "no evidence" of the provisions of s 6.19 being "properly invoked". This submission suffers from the vice of the previous one in appearing to reverse the onus of proof where allegations of invalidity are concerned. However, it suffers from a further additional defect. That defect arises out of the wording of s 6.19 itself. It imposes a duty on a local government wishing to impose a fee or charge "after the annual budget has been adopted". On any view, this was not a fee purportedly imposed after the imposition of the annual budget. As the respondent submitted, it was a fee imposed by, or at the time of adoption of, the annual budget, while even on the appellant's submission it was one imposed in a financial year prior to the valid adoption of any annual budget.
Finally, there is a ground of appeal to the effect that the requirements of s 6.16(3) were not fulfilled by the bare resolution passed at the relevant council meeting. The relevant motion was that "the council to adopt the attached draft budget for the year ending 30 June 1997 subject to deletion of references to amendment of tipping fees". The draft budget contained proposed fees including a proposed fee of $9 per tonne, as I have noted. That fee was an amount which had been imposed in previous years. It also contained a new fee, not previously imposed, dealing with "asbestos/special disposals". That appears to have been the amendment which was to be deleted by the motion.
The ground is similar to a submission apparently addressed to his Honour at trial. It was not developed before us, except that it was submitted that it would encompass a suggestion made by the Court that the 1995 Act contemplated the adoption of the budget and the imposition of fees as separate and distinct acts of the local government and that it may be that a council which had simply purported to adopt a budget had not thereby resolved to impose all of the fees contained in the budget.
However, there is no statutory requirement for distinct motions. It is clear that fees can be imposed by resolution and it is equally clear that fees should generally be imposed at the time of the adoption of the annual budget. Whether the fees are imposed by virtue of the adoption of the annual budget is a matter of construction of the motion and of the relevant budget documents. In my view, although it might have been more clearly expressed, the motion was intended, subject to the one deletion mentioned, not only to adopt the budget but to impose all of the fees and to authorise all of the expenditure contained therein.
In view of the conclusions I have reached concerning the fee set for 1996/1997, it is not necessary to turn to the other matters raised in the appeal. I would dismiss the appeal.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: GIACCI BROS PTY LTD -v- BUNBURY-HARVEY REGIONAL COUNCIL [2001] WASCA 282 (S)
CORAM: ANDERSON J
HEARD: 29 JANUARY 2002
DELIVERED : 12 SEPTEMBER 2001
SUPPLEMENTARY
DECISION :8 FEBRUARY 2002
FILE NO/S: FUL 166 of 2000
BETWEEN: GIACCI BROS PTY LTD
Appellant (Defendant)
AND
BUNBURY-HARVEY REGIONAL COUNCIL
Respondent (Plaintiff)
Catchwords:
Costs - Scale of costs - Counsel fees - Allowance for Queen's Counsel - Application for special order to increase or remove limit - Whether good or sufficient reason to order increased allowance
Legislation:
Supreme Court Rules, O 66 r 12(1)
Result:
Application allowed in part
Category: B
Representation:
Counsel:
Appellant (Defendant) : Mr J C Curthoys
Respondent (Plaintiff) : Mr D J Garnsworthy
Solicitors:
Appellant (Defendant) : Slee Anderson Pidgeon
Respondent (Plaintiff) : Joe Scurria & Associates
Case(s) referred to in judgment(s):
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Re K L Tractors Ltd (In Liq) (1961) 106 CLR 318
Schmidt v Gilmour [1988] WAR 219
Case(s) also cited:
Collins v Wetralian Sands Ltd (1993) 9 WAR 56
McLean v Kerville, unreported; SCt of WA; Library No 6455; 1 October 1986
CAI Fences Pty Ltd v A Ravi (Builders) Pty Ltd, SCt of WA; Library No 8740; 27 December 1990
Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1994) 13 WAR 242
Broad v Westralian Sands, DCt of WA; Library No 4051; 10 June 1994
ANDERSON J: This appeal was dismissed on 12 September 2001 and the appellant was ordered to pay the respondent's costs, with liberty to the respondent to apply for a special order. The respondent now applies for a special order pursuant to O 66 r 12(1) of the Supreme Court Rules with respect to item 20(e) in the Supreme Court scale of costs. That is the item which relates to Queen's Counsel fees and it sets a limit of $10,500 for the first day of hearing, assuming two days of preparation. In this case, the affidavit filed on behalf of the respondent reveals that Queen's Counsel engaged on the appeal has rendered fee notes amounting to $47,070, of which $32,850 is referable to scale item 20(e), so that, unless a special order is made, the respondent will recover a maximum of $10,500 against the disbursement to counsel of $32,850.
Under O 66 r 12(1) the Court may order that a particular allowance in a relevant scale be raised or a limit removed where it is of the opinion that a special order as to costs should be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason. The basic principle is that the successful party to litigation should recover the costs which the party has reasonably and properly incurred in pursuing or defending the litigation. When it is demonstrated that an amount of work significantly in excess of that assumed by the relevant scale limit has, in fact, been performed, and the Court determines as a matter of judgment that, on the face of it, the work done appears to have been reasonably done, there will usually be good and sufficient reason for making the order, even if the case is not of unusual complexity or importance. A fortiori if it is. Schmidt v Gilmour [1988] WAR 219; Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 404.
As Burt CJ pointed out in Schmidt v Gilmour (supra) not every degree of inadequacy will result in the making of a special order. Burt CJ said at 220: "The inadequacy must be such as to constitute a good and sufficient reason and whether it does is a question for judgment in every case."
It is not for this Court to make a judgment about the reasonableness of the fee rate that Queen's Counsel has charged. That can be left to the taxing officer. It seems to me that, in this case, the question for the Court is whether more preparation time should be allowed; that is, whether an allowance of two days for preparation is so inadequate as to constitute a good and sufficient reason to make a special order. The following are the matters which I consider relevant to that question.
The appeal book is of three volumes, comprising 950 pages. The reasons for judgment are of 53 pages. The grounds of appeal are lengthy, running to 13 pages. Although there are only eight numbered grounds, many of the numbered grounds are compound in the sense that they contain multiple subgrounds and extensive particulars. The grounds allege multiple errors of law and of fact. They plead, for example, that the trial Judge erred in finding that the fee for use of the refuse disposal site had been validly set under the Local Government Act 1995; erred in finding that the respondent had power to enter into a contract with users of the site; erred in finding that there was an intention to create contractual relations; erred in applying the principle in Re K L Tractors Ltd (In Liq) (1961) 106 CLR 318 and erred in his conclusions regarding estoppel and quantum meruit. In short, it was a wide‑ranging attack on a lengthy judgment. On the respondent's side, there was a lengthy notice of contention, itself running to 13 pages. The appellant's outline of submissions is of 15 pages, containing six discrete headings. The respondent's submissions comprise 30 pages. The case is of some public importance as it is about the power and authority of a local government to fix its fees for access to and use of its waste management facilities and the manner in which it may validly do so.
In my judgment, and notwithstanding the fact that the same Queen's Counsel had represented the respondent in the trial, an allowance of only two days' preparation for this appeal is so inadequate as to justify a special order. A reasonable allowance would be for five days' preparation and I would be prepared to make an order directing the taxing officer to tax the fees of Queen's Counsel on the basis that he should be allowed five days' preparation instead of the two days' preparation stipulated in item 20(e).
If agreement cannot be reached on the form of the order, I will hear counsel.
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