R v Australasian Films Limited

[1922] HCA 5

30 CLR 274

THE KING AND THE MINISTER FOR

AUSTRALASIAN FILMS LIMITED AND Practice-High Court-Costs-TaxationJudgment for plaintiff with costs-Finding

against plaintiff as to part of claim-Costs incurred in respect of that part- Unnecessary costs-Supreme Court Rules of 18th November 1915 (N.S.W.), n. 42. SYDNEY,

Rule 42 of the Rules of the Supreme Court of 18th November 1915 (N.S.W.) provides that 'The Court or Judge may, at the hearing of any cause or April 6.

disallow the costs of any document, evidence or proceeding which is improper, vexatious, unnecessary, or contains vexatious or unneces sary matter

or may direct the taxing officer to consider such docu- ment, evidence or proceeding and to disallow the costs thereof, or of such

30 CLR 275

part thereof as he finds to be improper, unnecessary, vexatious, or to contain unnecessary matter,

and in such cases the party whose costs are SO disallowed shall pay the costs occasioned thereby to the other parties; and in any case where such question has not been raised before and dealt with by the Court or Judge it shall be the duty of the taxing officer to consider the same

for the purpose aforesaid, and thereupon the same consequences shall ensue as if he had been specially directed to do so, and the taxing officer shall make such order as may be required to effect the object of this rule."

In an action instituted in the New South Wales Registry of the High Court to recover penalties for a large number of breaches of the Customs Act 1901- 1910, the plaintiffs also alleged that the breaches had been committed with have been committed, and some of them with the intent charged, but as to the majority of the offences it was specifically found that they had not been committed with that intent. Judgment was given for the plaintiffs

Held, that on taxation of the plaintiffs' costs the taxing officer, under the above rule, properly disallowed the costs incurred in attempting to prove an intent to defraud the revenue in respect of the breaches specifically found not

REVIEW of taxation.

An action was brought in the High Court in the New South Wales Registry by His Majesty the King and the Minister of State adminis- tering the Customs against Australasian Films Ltd. and Harry George Musgrove to recover penalties under secs. 234 and 241 of the Customs Act 1901-1910. Thirty offences were charged against the Company under sec. 234, and each of them was separately charged under sec. 241 to have been committed with intent to defraud the revenue, Twenty-four of the offences were alleged to have been committed in respect of claims for drawback on certain goods, and the other six in respect of the importation of certain are lamps. Eight offences were charged against the defendant Mus- grove under sec. 234. The action was heard by Knox C.J., and at the trial it was admitted that the Company and Musgrove had com- mitted all the offences charged under sec. 234. The learned Chief Justice stated a case for the Full Court (The King v. Australasian Films Ltd. 1 ) and in accordance with the opinion of the Full Court he found specifically that the thirty offences charged against the Company under sec. 234 had been committed, that the six offences

1(1921) 29 C.L.R., 195. 30 CLR 276

in respect of the importation of arc lamps had been committed with

intent to defraud the revenue, and that the twenty-four offences in respect of claims for drawback had not been committed with that intent. He then gave judgment for the plaintiffs, imposing certain penalties and directing the Company to pay the plaintiffs' taxed costs of the action, including the costs of the reference to the Full Court.

When the bill of costs of the plaintiffs was brought in for taxation before the District Registrar for New South Wales, the plaintiffs claimed that they were entitled to all the costs they had incurred in the action as there had been no order of the Court depriving them of any of such costs. The defendant Company, on the other hand, contended that the plaintiffs were not entitled to the costs incurred in attempting to prove that the twenty-four offences in respect of drawback had been committed with intent to defraud the revenue. The District Registrar upheld the contention of the defendant Company and disallowed the particular claim. The plaintiffs then, in pursuance of the Rules of the Supreme Court of 18th November 1915 (N.S.W.), brought in objections to the taxation the material one being that the said costs SO disallowed were costs properly incurred in the action, were proper to be allowed, and were not incurred through over-caution, negligence or mistake. The District Registrar disallowed the objection. In his reasons for SO doing he referred, in the first instance, to rule 42 of the Rules of the Supreme Court of 18th November 1915 (N.S.W.), under which a taxing officer is required to consider whether costs have been unnecessarily incurred although no order has been made directing him to make such inquiry, and to Re Wormsley 1; and stated that it therefore became necessary for him to consider whether the costs in question had been necessarily incurred. He pointed out that the costs which a successful litigant can recover from his opponent are such as will indemnify him for the expense he has properly and neces- sarily incurred in prosecuting a claim that he is entitled to make. He also referred to rule 50 and the following authorities: Gray on Costs, pp. 41-42; Kearney v. Bryan 2 Reid, Hewitt &Co. V.

1(1878) 39 L.T., 85. 2(1871) 10 S.C.R. (N.S.W.) (L.), 167, 30 CLR 277

Joseph 1; Delisser v. Towne 2; Cocks v. Peachey 3; Anderson V. Chapman 4; Daniel v. Barry 5, and Reynolds v. Harris 6; and expressed the opinion that those authorities established the proposition that the costs incurred by a successful litigant in attempting to prove some part of a claim or defence which the finding of the Court shows he has failed to prove, are not costs which have been necessarily incurred by him; and that this pro- position was also supported by the fact that the litigant succeeds in the action although he fails to prove that part of his case. He then stated that he had acted upon that principle and had disallowed the costs incurred by the plaintiffs in unsuccessfully attempting to prove that the twenty-four offences had been committed by the Company with intent to defraud the revenue, as being costs unneces- sarily incurred.

The plaintiffs now applied, by summons before Knox C.J., to review the taxation.

Badham, in support of the summons. H. E. Manning, to oppose. [During argument reference was made to Howell v. Dering 7 Reid, Hewitt &Co. v. Joseph (1).]

Cur. adv. vult. Knox C.J. dismissed the application.

Application dismissed with costs. Solicitor for the plaintiffs, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitors for the defendant Company, Sly &Russell.

1(1918) A.C., 717. 2(1841) 1 Q.B., 333. 3(1828) 2 Man. &R., 420. 4(1839) 7 Dowl., 822. 5(1843) 4 Q.B., 59. 6(1857) 3 C.B. (N.S.), 297. 7(1915) 1 K.B., 54