Schmidt v Gilmour

[1988] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No PS of 1988

B e t w e e n -

YVONNE SCHMIDT

Applicant

and

VIVIENNE JEANNE GILMOUR

First Respondent

and

JOHN MURRAY GILMOUR

Second Respondent

Application for special leave

to appeal

WILSON J

Schmidt

DEANE J

DAWSON J :~

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA ON FRIDAY, 5 AUGUST 1988, AT 2.09 PM

Copyright in the High Court of Australia

C2T4,0/l/SR 1 5/8/88

MR P. OLIVIER:  May it please the Court, I appear for the

applicant in this application. (instructed by

Talbot and Olivier)

MR R.L. LE MIERE:  May it please the Court, I appear for

the respondents in this application. (instructed

by Chris Phillips)

WILSON J: Yes, Mr Olivier?

MR OLIVIER:  Your Honours, the affidavit filed by Mr Staude

in support of this application, in my submission,

does not go anywhere near far enough to

demonstrate the importance of this case to, not only

the legal profession, but to the community

generally. And when I say "the community generally"

I do not mean West Australians alone but I mean

companies, all persons who may have access or who

may visit this State, who may conduct business

in this State or for whatever reason they may be

here and who have need to go before either the

district court or the supreme court of this State.

On page 75 of the papers, Mr Staude, in

paragraph 11 made the submission that:

the proceedings in which the judgment
to which the application relates .....
involves a question of law that is
of public importance because of its

general application to litigation in

the Supreme Court and District Court

jurisdictions.

Then he went on to paragraph 12 and seemed to

qualify that by saying that it was of particular

importance, not only in the context in which

paragraph 11 is set out but also to insurers such

as the State Government Insurance Commission. But

it is simply submitted that the judgment is far more

reaching and has far wider ramifications than simply what insurers may see as of particular interest to them.

(Continued on page 3)

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DAWSON J: Mr Olivier, it is unusual for this Court to grant

special leave with respect to the interpretation of a rule of court. The supreme court after all
can make its own rules and change them as it wishes

and it therefore seems inappropriate to allow their

interpretation of the rules to be questioned here.

MR OLIVIER:  I am conscious of that practice, Your Honour,

but it is submitted that whatever we are interpreting

is a matter of grave public importance and whilst

I accept that it is unusual for the High Court

to consider these matters, I submit that this is

a special case. And if I could, perhaps, take

Your Honours to the authorities and, indeed, if

I could start out by referring to the case of KROEHN.

Your Honours, I will not at this stage take you

to the rules because I think that perhaps it may

be more fruitful to overcome this initial problem

that I have. If I could turn to the decision of

KROEHN V KROEHN, 15 CLR 137, and firstly and in

particular at page 145. That was a decision of

the Full Court and it concerned the taxation of

costs and the exercise of a discretion by the

master on a wrong principle and His Honour

Mr Justice Barton said on page 145:

When we come to the decision of the majority

of the Supreme Court, it practically amounted

to a refusal to interfere with the discretion

of the Master. On that point I think the

words of Parker J. in PEEL V LONDON AND

NORTH WEST RAILWAY CO. (NO 2) are applicable.

He said:- "I think it is the duty of the Court

on the decisions to come to a conclusion itself

upon a summons to review the taxing Master's

decision in a matter of this sort" (which

was a matter of the employment of three counsel),

"and that it is impossible for the Court to

shelter itself behind the taxing Master's

discretion in considering the point."

DAWSON J: There is no duty to give special leave.
MR OLIVIER:	No, I accept that but we simply say by analogy,

if I could deal with the error in principle that

we say that the trial judg~ to the extent that
there was one, is so important that this is a case
where the High Court should grant special leave
although I accept that there are authorities which

demonstrate that special leave certainly is not

lightly given in such cases, if any. For instance,

HALLY V DENNIS, the sixth authority on my list

is a clear case where the Court has stated categorically

that it is unusual to entertain appeals on questions

of costs.

DAWSON J: What is the citation of that authority?

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MR OLIVIER:  95 CLR 661 at 664. But His Honour simply said

in that case that - at the bottom of page 664:

I need not refer to the principles

upon which we exercise the power to grant

special leave. It is, of course, well known

that special leave is not readily granted

to review any order in relation to costs,

let alone one which depends in any way upon

discretion.

But we simply say· in this case that His Honour

misunderstood the principles and to that extent

the purported exercise of the discretion did not

amount to the exercise of any discretion at all.

(Continued on page 5)

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DAWSON J:  It is not really a matter of discretion, Mr Olivier,

it is a matter of the supreme court making its own

rules, interpreting its own rules and changing

them itself when it finds them unsatisfactory.

It is in that situation that it is inappropriate

that this Court should direct its attention to the

rules because, in fact, this Court's decision could

only govern the situation in a temporary way.

MR OLIVIER:  I suppose, Your Honour, that could be said about

most decisions of most courts because if the decision

was one which was unpalatable to the legislative

authorities one assumes that the appropriate amendments

could be made and, indeed, in relation to a scale -

I will not say similar to our own but to a scale

• which has some similiarities, and that is the

New Zealand one which I have referred to in No 10

in my list. I do not have the text of the

Practice of the High Court and Court of Appeal of

New Zealand as such but this is a publication by

Sim and Cain. The second schedule in New Zealand

has certain similarities between our State and

New Zealand and it was there said in relation

to a case where the question of costs was very

much in issue: in MORTON V DOUGLAS HOMES LTD (No. 2),
(1984) 2 NZLR 620,at 624 and 625. I must hasten

to concede to the Court that that was a decision

of a single judge. That was a case where - and I

am quoting from page 624: 

The present case demonstrates yet another respect in which scales or rates of costs or fees fixed by statutory regulation have

failed to keep in step with the effects of

inflation. Where the scale in question is one

which regulates the remuneratt.ion payable

to counsel, such as that under the Offenders

Legal Aid Regulations 1972, the Court has

many times expressed, with its sympathy, its

inability to legislate. If prescribed fees

are inad·equate, the solution lies in appropriate

amendment, not in the Court disregarding the

scale.

It is simply submitted that we are in very much

the same position as the parties were in the

New Zealand case. I cannot, however, proffer the

argument or proffer any better qualified answer

to Your Honour's observation that this being a rule,

of course, that we are speaking of that the courts

really should not be seen to become involved in

determining how those rules of courts are applied.

All that I can do is to say that the object	of the lump sum scale, as we see it, in particular
item 13 of the appropriate schedule, was to
introduce some degree of certainty to litigants
so that they knew,if they were going to become
involved, whether as plaintiff or as defendant

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Schmidt

for that matter, what sort of money they would

be liable to have to pay to the other side in the

event that they were the unsuccessful litigant and

if - and in this case it was agreed and it was so
found that this was a case which was neither unusually

complex nor important - that the scale could only

be increased if there were some other good or

sufficient reason. It is submitted that as we

have a scale there is little point in, if every time

a s,1licitor claims to have done - and, indeed,

if he has done - a little more work that he can

come along to the trial judge and seek a certificate.

We simply say that is not a good or sufficient

reason.

(Continued on page 7)

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MR OLIVIER (continuing):  We simply say that then eliminates any

prospect of certainly in relation to the costs and

for that reason this is such a case which would merit

the further consideration by this Court. There are

other authorities on my list but I do not think they

are going to assist Your Honours, so that is all I

believe that I can usefully say at this stage, and

even that with some temerity.

WILSON J:  Thank you, Mr Olivier. We will let Mr Le Miere

stand up. Mr Le Miere, now that we can see you, we

have to tell you we do not wish to hear you.

MR LE MIERE:  If it please Your Honours.

WILSON J: Special leave in this matter will be refused. It

conce""'.Tis a rule of court and is therefore a matter

upon which the Court would ordinarily be reluctant

to grant special leave. In any event the Court is not

persuaded that sufficient doubt attends the decision

of the Full Court to warrant the grant of special leave.

MR LE MIERE:	If it please the Court, I seek an order for costs.
WILSON J:	Can we see Mr Olivier? You cannot oppose that, can

you, Mr Olivier?

MR OLIVIER:  No, I certainly cannot, sir.

WILSON J:  No. Very well, special leave will be refused with

costs.

AT 2.23 PM THE MATTER WAS ADJOURNED SINE DIE

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