Pillar v Arthur - [1912] HCA 51

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Practice-Costs-District - - Court of New South Wales-Costs - where sum sued for

exceeds £10 but sum recovered does not exceed 10-District Courts Act 1901 (No. 4) (N.S.W.), secs. 32, 105, 106 - District Court Rules 1899 (N.S.W.), rr. SYDNEY, July 30, 31

Sec. 32 of the District Courts Act 1901 (a Consolidating Act) provides that: " The fees to be allowed to barristers and attorneys practising in any Dis- trict Court for appearing or acting on behalf of any person in any actions in such Court, and the expenses to be paid to witnesses, shall be fixed by scale in

" Provided that no such fees to barristers or attorneys shall be allowed in any case where the sum sued for does not exceed £10."

Sec. 105 provides that :-" All the costs of any action not herein or other wise provided for shall be paid by or apportioned between the parties in such manner as the Judge thinks fit, and in default of any special direction shall abide the event of the action or result of the decision. and such costs may be recovered in like manner as any debt adjudged to be paid can be recovered."

Held, that the proviso to sec. 32 only applies to a case where the amount sued for does not exceed £10, and not to a case where the amount sued for exceeds £10, but the amount recovered does not exceed £10.

Ex parte Goebel, 2 S.C.R. (N.S. W.), 82, approved. Emery v. Binns, 7 Moo. P.C.C., 195, distinguished. Rule 365 of the District Court Rules 1899 provides that:-" Where the demand is unliquidated, and the plaintiff recovers less than the amount claimed, the Judge may order that his costs be taxed on the scale applicable to the amount claimed, or any intermediate scale."

15 CLR 19

Held, that the rule is not ultra vires. Three scales of costs were fixed by the Rules, the lowest applying where the "subject matter or the sum recovered exceeded £10 and did not exceed £30, the next applying where such subject matter or sum exceeded £30 and did not exceed £75, and the highest applying where such subject matter or

Held, that in a case where the amount sued for was over £10 and the amount recovered was under £10 the District Court might, under Rule 365 and see. 105 of the Act, award costs on the lowest of such scales.

Decision of the Supreme Court of New South Wales: Ex parte Pillar, 11 S.R. (N.S.W.), 559, affirmed.

APPEAL from the Supreme Court of New South Wales.

An action was brought in the District Court at Tenterfield in New South Wales by John Arthur against John Pillar claiming £30 for trespass to land, in which a verdict was given for £2 with costs on the lower scale." An 'objection was taken that the District Court Judge had no power to grant costs.…

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: [1912] HCA 51
Decision Date: 12 August 1912

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning the entitlement to costs in a District Court action. The appellant, John Pillar, had sued the respondent, John Arthur, for £30 in damages for trespass, but only recovered a verdict of £2. The District Court Judge awarded the respondent costs on the lower scale. Pillar sought a writ of prohibition, arguing the Judge lacked jurisdiction to award costs when the sum recovered was less than £10. The Supreme Court discharged the order nisi, and Pillar appealed to the High Court.

The central legal issues before the High Court were the interpretation of section 32 of the *District Courts Act 1901* (NSW), particularly its proviso regarding sums "sued for," and whether Rule 365 of the *District Court Rules 1899* (NSW) was valid and applicable to the circumstances. Specifically, the court had to determine if the proviso to section 32 applied only when the initial sum claimed was £10 or less, or if it extended to cases where the sum recovered was £10 or less, even if the sum sued for exceeded that amount. The court also considered whether Rule 365, which allowed a judge to order costs on the scale applicable to the amount claimed in cases of unliquidated demands where less was recovered, was *ultra vires* or otherwise inapplicable.

The High Court, affirming the decision of the Supreme Court, held that the proviso to section 32 of the *District Courts Act 1901* applied only to cases where the sum *sued for* did not exceed £10, and not to cases where the sum sued for exceeded £10 but the sum recovered did not. This interpretation was supported by the long-standing precedent of *Ex parte Goebel* (1863), which had been implicitly endorsed by the legislature through subsequent re-enactments of the statute. The court found that the case of *Emery v. Binns* (1858) was distinguishable. Furthermore, the court ruled that Rule 365 of the *District Court Rules 1899* was not *ultra vires* and was applicable. The rule permitted a judge, in cases of unliquidated demands where the plaintiff recovered less than claimed, to order costs to be taxed on the scale applicable to the amount claimed. Given that the sum sued for exceeded £10, the judge had the discretion to award costs on the lowest applicable scale, as was done in this instance.

Consequently, the High Court dismissed the appeal with costs, upholding the District Court Judge's order for costs on the lower scale.

Orders