In a superior court, the employment of two counsel upon the trial of a substantial action is reasonable and proper and the taxing officer should treat the briefing of two counsel as usual and proper unless the proceedings are MELBOURNE, simple involving no questions of consequence.

Kroehn v. Kroehn, (1912) 15 C.L.R. 137, applied. On the taxation of the costs of an action in which judgment has been given for the plaintiff on the claim with costs and for the defendant on the counter- claim with costs, the claim should be treated as if it stood alone and the counterclaim should bear only the amount by which the costs of the proceedings have been increased by it.

Medway Oil and Storage Co. Ltd. v. Continental Contractors Ltd., (1929) A.C. 88, followed and applied.

Although there can be no apportionment of items of costs between the claim and the counterclaim, it may be necessary to divide a single charge for work, if a severable part of the work relates to the claim and the other severable part

REVIEW OF TAXATION.

This was an application, under Order LIV., rule 55, of the High Court Rules, by the plaintiffs in an action to review a taxation of costs by the taxing officer of the District Registry, Brisbane. The action, which involved a counterclaim, was heard before Dixon

73 CLR 130

sitting in original jurisdiction at Brisbane. Judgment was entered for the plaintiff on the claim with costs and for the defendant on the counterclaim with costs: Smith Brothers v. Madden Brothers 1.

Kennedy Allen, for the applicants. Lukin, for the respondents.

Cur. adv. vult. The following written judgment was delivered

DIXON J. This is an application to review the taxation by the District Registrar, as taxing officer, of certain items in two bills of costs.

The application is on the part of the plaintiffs in the action and one bill was brought in by the plaintiffs, who had obtained judgment on their claim with costs, and the other by the defendants, who had obtained judgment on their counterclaim with costs.

In the plaintiffs' bill, the taxing officer disallowed a second counsel and the matter for decision upon the review of the taxation of that bill is whether he was justified in holding that the plaintiffs ought not to recover the costs of employing two counsel upon the trial of the

In the defendants' bill, which purported to relate to the defendants' costs of the counterclaim only, the taxing officer allowed items, in whole or in part, which the plaintiffs contend cannot, upon a proper application of principle, be recovered as costs of a counterclaim under an order awarding the costs of the action to one party and the costs of the counterclaim to the other party. The question to be decided in respect…

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.

Continue reading Smith v Madden

Details

AGLC: Smith v Madden [1946] HCA 19
Case: [1946] HCA 19
Decision Date: 19 July 1946

CaseChat Overview and Summary

This matter concerned an application by the plaintiffs to review the taxation of costs in an action heard in the High Court's original jurisdiction. The action involved a claim by the plaintiffs and a counterclaim by the defendants, with judgment ultimately entered for the plaintiffs on the claim and for the defendants on the counterclaim. The core dispute on review related to the taxing officer's disallowance of the costs of a second counsel for the plaintiffs and the taxing officer's allowance of certain items in the defendants' bill of costs for the counterclaim.

The court was required to determine two principal legal issues. Firstly, whether the employment of two counsel by the plaintiffs in the trial of this substantial action was reasonable and proper, and thus recoverable as a cost. Secondly, the court had to consider the correct principle for taxing the costs of a counterclaim when judgment is given for the plaintiff on the claim with costs and for the defendant on the counterclaim with costs, specifically addressing how to treat costs incurred in relation to issues that might be common to both the claim and the counterclaim.

Dixon J. held that the employment of two counsel was justified, stating that in superior courts, engaging two counsel in a substantial action is generally considered reasonable and proper, and should be treated as usual unless the proceedings are simple. He applied the principle from *Kroehn v. Kroehn* and indicated that taxing officers should presume the propriety of two counsel unless the case is demonstrably straightforward. Regarding the counterclaim costs, the court applied the established principle that the claim should be treated as if it stood alone, and the counterclaim should only bear the additional costs occasioned by its existence, as per *Medway Oil and Storage Co. Ltd. v. Continental Contractors Ltd.*. While individual items cannot be apportioned between claim and counterclaim, severable parts of a single charge for work may be divided if they relate distinctly to either the claim or the counterclaim.

The court ordered that the objections of the plaintiffs to the taxation of both their own bill and the defendants' bill be allowed. The bills were referred back to the taxing officer for review on the footing that the costs of two counsel for the plaintiffs should be allowed. The defendants were granted liberty to withdraw and substitute their bill of costs for the counterclaim. The defendants were ordered to pay the costs of the application.

Orders