Pickering v Smoothpool (No 6) - [2001] SASC 440

PICKERING v SMOOTHPOOL (No. 6)
[2001] SASC 440
Appeal from a Master

GRAY J This is an appeal from an order made by a master of this court.
Background
The litigation preceding the making of this order has a long and involved history. In substance it was a dispute between commercial fishermen regarding the nature of a trust arrangement entered into in the early 1980s. The arrangement related to an attempt to circumvent the effect of the fisheries legislation which the parties perceived prevented a person from holding more than one abalone authority. On 10 August 2000 following a lengthy trial, the trial judge ordered that the defendants pay a percentage of the plaintiffs’ costs. The precise terms of the order are not relevant to the matter under appeal[1].
[1] Edmunds v Pickering (1999) 75 SASR 407
Application was made by the plaintiffs pursuant to Supreme Court Rule 101.01(1)(a) for the trial judge to award a lump sum for costs.
Rule 101.01(1)(a) provides:
“[T]he Court may:
(a) award a lump sum, award a lump sum in lieu of, or in addition to, any taxed costs; …”
The trial judge dismissed the application because there was insufficient information to allow a lump sum to be fixed. The trial judge said:
“ … I have read the evidence contained in the affidavits. I am aware of the reasons for the application. However, I believe that I am constrained to find, as the defendants claim, that there is insufficient evidence before me upon which I could make a meaningful assessment of an appropriate amount for a lump sum. The plaintiffs have not provided me with even a draft of the plaintiffs’ solicitor’s costs in any form, let alone in any taxable form. They have not provided me with an opinion from a costs expert who has examined the files, which form the subject matter of the application … I am not satisfied that there is sufficient evidence before me upon which I can make a proper assessment of a lump sum which would be fair to all parties.”[2]
[2] Smoothpool Nominees Pty Ltd & Anor v Pickering & Ors [2001] SASC 131 at [46]
The trial judge dismissed a further application for an interim allocatur. He took the view that the application would more properly have been made pursuant to Rule 101.13 to a taxing officer conducting a taxation of costs. The following reasons were given:
“It seems to me, with respect, that the order sought in the plaintiffs’ application for an interim allocatur is misconceived. The procedure under r101.01(1)(a) allows, as I have said, for the Court to award a lump sum in lieu of or in addition to any taxed costs. This aspect of the plaintiffs’ application, which was the second ground of the application, is not in accordance with r101.01(1)(a). In effect, the plaintiffs are seeking, on this aspect of their application, an interim allocatur whilst a Short Form Bill of Costs is prepared. I think there is not doubt…

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 Pickering v Smoothpool (No 6)

Details

AGLC: Pickering v Smoothpool (No 6) [2001] SASC 440
Case: [2001] SASC 440
Decision Date: 21 December 2001

CaseChat Overview and Summary

In the case of Pickering v Smoothpool (No 6), the Supreme Court of South Australia was asked to review a decision made by a master under Supreme Court Rule 101.13. The dispute revolved around whether the master had the authority to make the order in question, given that a bill of costs in a taxable form had not yet been lodged. The primary issue before the court was whether the master's powers under Rule 101.13 could be exercised in the absence of a taxable bill of costs. This required the court to interpret the rule and determine the procedural context in which it applies.

The court examined the relevant provisions of the Supreme Court Rules and noted that Rule 101.13 explicitly states that the master's powers are invoked "on a taxation of costs." Given that a bill of costs in taxable form had not been submitted, the court concluded that the conditions for invoking the master's powers had not been met. The court also referenced previous cases and legal principles that support the necessity of a taxable bill of costs before the master can act. The reasoning was that without a formal bill of costs, there was no taxation of costs to which the master's powers could apply.

Consequently, the court found that the master's order made on 2 July 2001 was beyond their jurisdiction and therefore invalid. The appeal was allowed, and the order made by the master was set aside. The court's decision highlights the importance of adhering to procedural requirements in invoking the powers of a master under the Supreme Court Rules.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

The powers of the master pursuant to R 101.13 arise “on a taxation of costs”. As no bill of costs in taxable form had been lodged in this matter, the taxation of costs had not commenced. For these reasons the appeal must be allowed. The order made by the master on 2 July 2001 is set aside.LIST OF CITATIONS AS THE APPEAR IN THE JUDGMENT1 Edmunds v Pickering (1999) 75 SASR 4072 Smoothpool Nominees Pty Ltd & Anor v Pickering & Ors [2001] SASC 131 at [46] 3 Smoothpool Nominees Pty Ltd & Anor v Pickering & Ors [2001] SASC 131 at [20]4 (1916) 16 SR (NSW) 645 at 6495 No reliance was placed on Supreme Court Rule 101.01(1)(a). 6 SCR 101A.02(6) provides: “(6) In the event that within the period referred to in Rule (4) above no agreement is reached between the parties as to the amount payable or agreement is reached as to part only of the sum which the applicant seeks, the applicant may seek a taxation of the whole of the costs sought or of the costs remaining in dispute (as the case may be) in accordance with the provisions of Rule 101.”7 Malleson v Williams [1930] VLR 410

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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