QUEENSLAND. High Court-Special leave to appeal-From order imposing costs on successful
defendant-Order based upon determination of question of fact and introducing a discretion-Costs Act of 1867 (Q.).
A client's summons against a solicitor for delivery of a bill of costs and delivery up of the client's documents on payment of the amount found due on taxation was dismissed by the Supreme Court but an order was made that the solicitor should pay the client's costs of the proceedings.
Held that prima facie such an order infringed the rule that a successful defendant or party in that position ought not to be ordered to pay the un- successful party's costs of the proceedings but that if the fact was, as alleged, that the solicitor succeeded in the proceedings only by abandoning at the hearing a claim to charge disbursements, that might be enough to take the case out of the rule. The Court refused special leave to appeal on the issue
Special leave from the decision of the Supreme Court of Queensland (Full Court) Re Hally; Ex parte Dennis (1955) Q.S.R. 451, refused.
APPLICATION for special leave to appeal from the Supreme Court of Queensland.
This was an application by Thomas Joseph Hally, a solicitor, for special leave to appeal from SO much of the order of the Full Court of the Supreme Court of Queensland 1 as awarded to the plaintiff, Irene Mary Dennis her costs of the original proceedings before the primary judge though the decision of that judge in favour of the plaintiff was reversed by the Full Court.
The facts sufficiently appear in the judgment of the Court here- under.
M. F. Loxton Q.C. (with him T. R. Morling), for the applicant. The appeal is on the question of costs. Such an appeal does not lie to this Court without special leave: Glen v. Union Trustee Co. of Australia Ltd. 1. The granting of such leave requires extreme circumstances Jenkins v. Lanfranchi 2. This Court has held that a failure to give effect to a settled rule of practice is a circumstance warranting the granting of special leave: Glen v. Union Trustee Co. of Australia Ltd. (1). In this case the Court will not be asked to review the exercise of discretion but to hold that in law no dis- cretion existed. It is submitted this is a stronger case than Glen's Case (1). The order appealed from is not irregular but unlawful, and this is a more important matter than the erroneous exercise of a lawful power O'Sullivan v. Morton 3. The order appealed from is made under O. XCI., r. 1. This order gives to the court a discretion as to costs. It governs the mode of exercising the statu- tory power to order costs. It does not extend that power where none had previously existed. The Supreme Court has upheld the appellant's…
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 Hally v Dennis
Sign in free to access the full text
Details
AGLC
Hally v Dennis [1955] HCA 41
Case
[1955] HCA 41
Decision Date
CaseChat Overview and Summary
The applicant, Thomas Joseph Hally, a solicitor, sought special leave to appeal to the High Court from an order of the Supreme Court of Queensland. The dispute concerned the costs awarded to the client, Irene Mary Dennis, in proceedings initiated by the client against the solicitor. Although the Supreme Court had discharged the primary judge's order in favour of the client, it nevertheless ordered the solicitor to pay the client's costs of those proceedings.
The legal issue before the High Court was whether the Supreme Court had erred in law by ordering a successful party (the solicitor) to pay the costs of an unsuccessful party (the client). The applicant argued that such an order infringed a settled rule of practice, and that the Supreme Court had no discretion to make such an order in the circumstances. The respondent contended that the solicitor's conduct during the proceedings, specifically the abandonment of a claim for disbursements, provided a sufficient basis for the Supreme Court to exercise its discretion regarding costs.
The High Court considered that, prima facie, an order for a successful defendant to pay the unsuccessful plaintiff's costs infringes the general rule. However, the Court noted that if the solicitor had only succeeded by abandoning a claim for disbursements at the hearing, this might be sufficient to take the case out of the general rule and justify the costs order. The Court found that there was a real question of fact as to when this abandonment occurred, and that the material before it allowed for the view that a complete abandonment of any claim was not made until a late stage. Consequently, the Court concluded that it would not grant special leave to review either the determination of this factual question or the exercise of discretion by the Supreme Court judges.