Price v BW & RD Smart (No 2)

This matter concerned an appeal to the Full Court of the Supreme Court of South Australia regarding the assessment of costs. The dispute arose from a prior proceeding where the respondent had sought costs against the appellant. The core of the appeal focused on whether the fees of two counsel, including senior counsel, were reasonably incurred and therefore recoverable.

The legal issues before the Full Court were whether the taxing Master had erred in allowing the fees of two counsel, including senior counsel, and whether the circumstances of the case justified such an engagement. The Court was required to determine the appropriate principles for assessing the necessity and reasonableness of engaging senior counsel and a second junior counsel in the context of the original proceedings.

The Court reasoned that a reasonable litigant, at the time the brief was delivered, would not have considered it necessary or prudent to brief senior counsel for the adequate prosecution of the case. While acknowledging that such matters are ordinarily for the taxing Master, the Court held that only one junior counsel's fees should be recoverable. The Court referred to the principles outlined by Barwick CJ in *Stanley v Phillips* for considering such matters. The Court made orders that the respondent pay the appellant's costs of the application before the Master and the costs of the appeal, certifying the proceeding on appeal as fit for junior counsel.