ERNST ERDMANN GUSTAV KROEHN Costs-Taxation-Exercise of discretion by master on wrong principle-Appeal-
Duty of Court-Costs of second counsel-Suit for judicial separation-Appeal as to costs only-Special leave to appeal to High Court - Married Women's Protection Act 1896 (S.A.) (59 &60 Vict. No. 664), secs. 2, 4-Matrimonial ADELAIDE, Causes Act 1867 (S.A.) (31 Vict. No. 3), sec. 60.
Under sec. 2 of the Married Women's Protection Act 1896 (S.A.) an order MELBOURNE, having the effect of a decree for judicial separation may be made by a Court of summary jurisdiction on the ground of cruelty committed during the six months preceding the complaint.
In a suit in the Supreme Court by a wife for judicial separation on the ground of cruelty extending over a period of two years the Judge made a decree for judicial separation with costs against the husband. On taxation of ground that the case was one that could have been inexpensively decided by
Court of summary jurisdiction. On review, the Full Court, while of opinion that the Master's reason was erroneous, declined to interfere with the exercise of his discretion.
Held, that the Master had exercised his discretion on a wrong principle, that the Supreme Court had not independently exercised its discretion, and that therefore the High Court should exercise its own discretion.
The test for determining whether the costs of a second counsel should be allowed is whether a prudent man not compelled by poverty would have
Sec. 60 of the Matrimonial Causes Act 1867 contains a proviso that in a suit under the Act there shall be no appeal on the subject of costs only.
Held, that, where the complaint is that the Supreme Court has not really exercised its discretion but has proceeded on erroneous principles, that pro- viso does not afford a reason why the High Court should refuse special leave to appeal as to costs only.
Decision of the Supreme Court of South Australia reversed.
APPEAL from the Supreme Court of South Australia.
Emma Marie Kroehn by petition instituted a suit for judicial separation against her husband, Ernst Erdmann Gustav Kroehn, on the ground of cruelty extending over a period of two years.
The suit was heard before Gordon J. and a jury, and, the jury having found the respondent guilty of cruelty towards his wife, Gordon J. made a decree for a judicial separation and ordered the respondent to pay the petitioner her costs of the suit.
On taxation of the petitioner's costs the Master disallowed (inter alia) the charges for a second counsel on the hearing of the suit, and gave the following reason :- Seeing that the case was one which could have been inexpensively decided by a Court of summary jurisdiction, I did not consider a second counsel necessary or proper to be allowed against the respondent."
The petitioner applied by summons to Gordon J. for an order to review the taxation, and that summons being referred to the…
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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AGLC
Kroehn v Kroehn [1912] HCA 45
Case
[1912] HCA 45
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia regarding the taxation of costs in a judicial separation suit. The petitioner, Emma Marie Kroehn, had been awarded costs against her husband, Ernst Erdmann Gustav Kroehn, by the Supreme Court of South Australia. However, on taxation, the Master disallowed the costs of a second counsel, stating that the case could have been inexpensively decided in a Court of summary jurisdiction. The Full Court of South Australia, while acknowledging the Master's reasoning was erroneous, declined to interfere with his discretion. The petitioner then appealed to the High Court by special leave.
The central legal issues before the High Court were whether the Master had exercised his discretion on a wrong principle when disallowing the costs of a second counsel, and whether the Supreme Court had failed to independently exercise its discretion. The Court also considered the effect of a proviso in section 60 of the Matrimonial Causes Act 1867, which generally prohibits appeals on costs only, in circumstances where the complaint is that discretion has not been properly exercised.
The High Court held that the Master had indeed exercised his discretion on a wrong principle, as the petitioner could not have brought her case in a Court of summary jurisdiction due to the extended period of cruelty alleged, which exceeded the six-month limit for such courts. Furthermore, the Court found that the Supreme Court had not independently exercised its discretion but had deferred to the Master's flawed reasoning. Consequently, the High Court determined it should exercise its own discretion, applying the principle that the costs of a second counsel are allowable if a prudent person, not compelled by poverty, would have engaged two counsel in such a case, considering factors like the importance of the case, duration, and complexity of evidence. The Court allowed the appeal, reversed the decision of the Supreme Court, and directed a review of the taxation, declaring that the costs of two counsel should have been allowed.