Re Hudson; Ex parte Citicorp Australia Ltd

Re: RAYMOND JOHN HUDSON
Ex Parte: CITICORP AUSTRALIA LIMITED
And: RAYMOND JOHN HUDSON; SABSTERN PTY. LIMITED; ERICA MAY HUDSON and CARINA
OLIVE WICKHAM; TIM MAGUIRE and MICHAEL MAGUIRE; JENNIFER ANNE SOLLY
No. QLD PET 761 of 1984
Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Pincus J.

CATCHWORDS

Costs - two counsel or one - costs "of" a day - whether omission of "and incidental to" makes a difference - whether only covers work done on the day mentioned.

Bankruptcy Act, 1966, s.167(8)

HEARING

BRISBANE

#DATE 6:5:1986

COUNSEL: for the appellants Mr. W.J. Roberts instructed by Thynne & Macartney

COUNSEL: for the respondent Mr. G. Martin instructed by Skinner and Smith

ORDER

The appeal be allowed.

The matter be remitted to the taxing officer for reconsideration in the light of these reasons.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal under s.167(8) of the Bankruptcy Act against a decision of a taxing officer in respect of a bill of costs. The taxation in question related to an order of Spender J. in relation to a matter which had been before his Honour on 13 and 21 May 1985 and on 14 June. Orders were made on 14 June that the costs of the appellants "of the 13 and 21 May 1985 be paid by the applicant Citicorp Australia Limited" and that the costs "of today be paid by the fifth respondent ...".

1. No question arises with respect to the costs of the 13th and 21st days of May but the appellants make two complaints about the taxation in respect of the costs of 14 June 1985.

2. Firstly, they say that they were not allowed the costs of two counsel. The amount involved, so far as they were concerned, was a sum of about $15,000 and, except in one respect, it could not be suggested that the appellants' case involved any complexity. The possible exception was that during the course of proceedings before Spender J. it was suggested by the present respondent that some invalidity, of an unspecified kind, might have attached to a transaction in which the appellants engaged.

3. Counsel for the appellants before me urged that, because the nature of the invalidity was unspecified, it might have been of any degree of complexity and therefore the attendance of senior counsel was reasonably required. That argument seems to me to have only a theoretical weight. Counsel relied upon the criterion set out in Kroehn v. Kroehn 15 CLR 137 at 141: "Would a prudent person not compelled by poverty come into Court in such a case without two counsel?"
   
   

After setting out that test, Griffith C.J. said: "In answering that question regard must be had, inter alia, to the importance of the case, the probable duration of the trial, the probability of conflict of evidence entailing the necessity of careful cross-examination, and the…