Green & Ors v Australian Hydrocarbons Nl - [1988] HCATrans 314

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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Sydney No S75 of 1988
B e t w e e n -
NEVILLE GEORGE GREEN
MARIE ANNETTE GREEN
STEPHEN RICHARD LACHER
PHILIP EDWARD GREEN
ANDREW DAVID GREEN

Applicants

and
AUSTRALIAN HYDROCARBONS N.L.

Respondent

Application for special leave
to appeal

MASON CJ
WILSON J TOOHEY J

Green
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 9 DECEMBER 1988, AT 11.09 AM
(Continued from 25/11/88)
Copyright in the High Court of Australia

SlTS/1/SDL 4 9/12/88
MR R. GYLES, QC: If Your Honours please, I appear with my
learned friend, MR J. CALLAWAY, for the applicants.
(instructed by N.G. Green & Co)

MR D.F. JACKSON, QC: May it please the Court, I appear

with my learned friend, MR J.S. WHEELHOUSE, for

the respondent. (instructed by Allen Allen &
Hemsley)

MASON CJ: Yes, Mr Gyles.
MR GYLES: Your Honours, the special leave point, in our
submission, is the interrelationship between the general order in relation to solicitors'
costs which was made under the CONVEYANCING ACT
which permitted a gross fee to be charged on
the one hand and the provisions of the LEGAL
PRACTITIONERS' ACT dealing with the submission,
service and so on, of bills of costs and taxation
on the other.
I hasten to say that the particular statutory

framework which was applicable at the time has

since been amended. However, the point remains
virtually identical under the present legislation
because the order made under the CONVEYANCING
ACT has been continued in force so far as is
relevant by a series of later legislative enactments.
I will take Your Honours to that if I may to
show that the point is still a live one.
The issue can be identified from

Mr Justice McHugh's judgment commencing at page 58
of the book and running through to page 61 of

the book. The same point was dealt with by
Mr Justice McLelland as the second ground at
pages 34 and 35 of the book and it was dealt with
by the master at pages 7 to 10 of the book.

have the statutory enactments before Your Honours. Your Honours, it would be necessary to
I would hand them up in sequence: the first
set of enactments is the 1898 LEGAL PRACTITIONERS
ACT as it stood before the 1984 amendments;
secondly, Your Honours, there are the 1984 amendments,
THE LEGAL PRACTITIONERS (SOLICITORS REMUNERATION)
AMENDMENT ACT - I have four copies of that;
there are the saving provisions of that Act.
Then there are the relevant provisions of the
LEGAL PROFESSION ACT 1987 and the relevant saving

provisions under that Act. Then, Your Honours,
there is the Conveyancing General Order. The
relevant clause is set out in all of the judgments,
we thought, however, it would be best to have
available a full copy of the general order.
We have photocopied, Your Honours, the 1984 general
order which governed some but not all of the

SITS/2/SDL 5 9/12/88
Green

bills in…

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.

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Details

Case: [1988] HCATrans 314
Decision Date

CaseChat Overview and Summary

The case of Green & Ors v Australian Hydrocarbons Nl concerned an application for special leave to appeal to the High Court of Australia. The applicants were represented by Mr R. Gyles, QC, and Mr J. Callaway, while the respondent was represented by Mr D.F. Jackson, QC, and Mr J.S. Wheelhouse.

The central legal issue before the court was the interplay between a general order made under the Conveyancing Act, which permitted solicitors to charge a gross fee, and the provisions of the Legal Practitioners Act concerning the submission, service, and taxation of bills of costs. Although the statutory framework had been amended since the events in question, the applicants argued that the point remained live due to the continuation of the relevant Conveyancing Act order in force through subsequent legislative enactments.

The court was required to consider the provisions of the Legal Practitioners Act 1898, specifically sections 29 and 36, which dealt with the court's power to order the delivery of a bill of costs and the time limit for applying for a reference for taxation after payment of a bill, respectively. The applicants' submission focused on how these provisions interacted with the allowance of gross fees under the Conveyancing General Order, which was also before the court for consideration.

Orders