Stanley v Phillips

[1966] HCA 24

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Taylor, Menzies and Owen JJ.

STANLEY v. PHILLIPS

(1966) 115 CLR 470

27 April 1966

Costs

Costs—Taxation—Two counsel—Senior counsel—Principles on &hich costs allowed—Action for damages for personal injury—Quantum of damages only in issue—Rules of the Supreme Court (Vict.), O. LXV, r. 27 (29), (47).

Decisions

April 27.
The following written judgments were delivered:
BARWICK C.J. The respondent sued the appellants in the County Court at Melbourne for damages for personal injuries said by the respondent to have been caused by the negligence of the appellants in the driving of motor cars on a public road. The respondent was a passenger in the car driven by one of the appellants, which came into contact with the car driven by the other appellant. His injuries consisted of a dislocated right hip, fracture with separation of a fragment from the posterior margin of the acetabulum and some injury to the right knee. He was a very young man who made a good recovery from these injuries and returned to his work as a mill-hand some ten weeks after the accident; he was also able in due course to resume active participation in football. The special damages claimed by him, consisting of his loss of wages and medical and hospital expenses, amounted to a sum of a little in excess of 200 pounds. He claimed an unspecified amount of general damages. The maximum which the County Court could award in such a case was 2,500 pounds. (at p474)

2. Some months before the claim was due to be heard in the County Court, the appellants admitted liability. When preparing the case for the assessment of his damages, the respondent, a few days before the date for hearing, was submitted to an orthopaedic surgeon for examination. It was then ascertained that his hip was showing signs of an early osteo-arthritis which would most likely progress to the point where in ten years he would be suffering a serious disability preventing him from following the occupation which he was presently following and which in fifteen years might necessitate an arthrodesis. This prognosis placed a different aspect upon the respondent's injuries and upon the amount he might recover in damages. Consequently, his action, by consent but at his instance, was transferred to the Supreme Court pursuant to s. 63 of the County Court Act 1958 (Vict.). (at p474)

3. Subsequently the respondent was examined by another orthopaedic surgeon and also by two medical specialists on behalf of the appellants. After the transfer of the action to the Supreme Court, senior and junior counsel were briefed to conduct the respondent's case on the assessment of damages. However, when the action was about to be heard in the Supreme Court it was settled, the respondent accepting judgment for 3,000 pounds and costs. (at p474)

4. Upon the taxation of the respondent's bill of costs, objections were made by the appellants to the item of senior counsel's fee and associated items. The taxing master disallowed the objections for reasons which neither party to this appeal seeks to support. The appellants appealed to the Supreme Court pursuant to O.LXV, r. 27, reg. 41, against this disallowance. The appeal came before Hudson J., who held that the exercise of the taxing master's discretion had been influenced by an erroneous view of the facts. Accordingly, his Honour exercised his own discretion: he upheld the appellants' objections and disallowed senior counsel's fee and the associated items. The respondent appealed to the Full Court of the Supreme Court which by majority allowed the appeal and disallowed the appellants' objections. Having regard to the difference of opinion as to matters of principle expressed by the Judges of the Supreme Court and the general importance of the questions involved, the Court gave the appellants special leave to appeal by virtue of which they now appeal against the order of the Full Court. (at p475)

5. The statutory provisions regulating the exercise of the taxing master's discretion in the allowance of costs are to be found in O. LXV of the Rules of the Supreme Court of Victoria. Rule 27, reg. 29, of that Order provides: "(29) On every taxation the taxing officer shall allow all such costs, charges, and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party: Provided that in taxations as between party and party no costs shall be allowed which have been incurred or increased through over-caution or by payment of special fees to counsel or special charges or expenses to witnesses or other persons or by other unusual expenses." (at p475)

6. By reason of reg. 47 of r. 27 the taxing master in a case in which he considers the fees of two counsel may properly be allowed, may do so though each counsel is of the junior bar. (at p475)

7. The primary judge accepted the view that the action was a substantial one from the plaintiff's point of view but, having considered the circumstances to which I have adverted and the details of the evidence which the plaintiff would have led and that which he might anticipate being led against him, his Honour concluded that the case was a simple one in which complicated questions did not arise. He considered the presentation of the case to be well within the competence of a member of the junior bar accustomed to conduct such cases. He said that the question was "whether it was necessary or proper to incur the costs for the attainment of justice. What is proper for this purpose involves a question of what is reasonable or proper in the circumstances and if, in any case, there are available competent junior counsel sufficiently experienced to present the case and conduct the trial in a satisfactory manner, it is proper that such counsel should be employed. The employment of senior counsel to lead in such circumstances amounts to a luxury or to over-caution, the expense of which cannot be justly thrown on the opposing party". (at p476)

8. The Chief Justice, who presided in the Full Court on appeal, could not accept the passage which I have quoted as a test for determining whether senior counsel's fee should be allowed, though the availability of competent junior counsel might in his Honour's opinion, in some circumstances, be a relevant factor in deciding whether the employment of senior counsel was warranted. The Chief Justice ruled that if an action to be tried in the Supreme Court could fairly be regarded as one of real substance, senior counsel's fee should be allowed. It would seem that in his Honour's view, the transfer of the respondent's action to the Supreme Court and the reasons therefor gave it the required importance or substance. (at p476)

9. Smith J., who formed with the Chief Justice the majority of the Full Court, took a different ground. He thought the primary judge's test unacceptable, for the reason, amongst others, that it involved an unwarranted assumption that junior counsel would exercise the skill he had. He said in substance that the question was whether senior counsel could properly be engaged at the opponent's expense to lessen the risk that junior counsel might fail to do as he could and ought to do. His Honour thought the case one of importance and difficulty, and having regard to the range of possible verdicts, which indicated that the plaintiff had at risk in the assessment of damages a sum of the order of 4,000 pounds or more, he concluded that the case was "a substantial one as regards amount at risk, and one likely to involve real difficulties for the plaintiff's counsel, both in the presentation of his own case and in the meeting of adverse expert evidence. Furthermore the responsibility to be assumed by counsel was no light one, for the amount at risk was of great importance to the plaintiff, representing (as it must be taken for this purpose that it would do) his consolation for pain and disability and his protection against a reduced standard of living, over a large part of his lifetime." Little J., in dissent, thought the case was not a case for the employment of two counsel, though he was not prepared to accept the "test" propounded by the primary judge. (at p476)

10. For reasons which will appear, though, as I think, he reached a correct result, the primary judge did not, in my opinion, wholly apply the correct principle. In addition he formulated a test which is not, in my view, a proper test for a taxing officer to apply when determining whether the services of two counsel are necessary or proper for the attainment of justice. Accordingly, in my opinion, the Full Court was entitled to exercise its own discretion. But, as will appear, the Full Court, in my opinion, erred in principle in its approach to the problem in the case. (at p477)

11. The terms of reg. 29 were first introduced into the Rules of the Supreme Court of Judicature in 1902 as 0.65, r. 27, reg. 29. But it has been held that their introduction did not alter the practice theretofore followed as to the allowance of the fees of more than one counsel. (Peel v. London and North Western Railway Company (No. 2) (1907) 1 Ch 607 , per Parker J. (1907) 1 Ch, at p 611 .) In other words the principles to be applied in considering the allowance of the fees of more than one counsel as expressed in the regulation are the same as those in use before the making of the Rules. But this does not mean that particular applications of these principles in the past in the atmosphere of the then current practice afford binding precedents for the application of these principles in current times. No doubt in 1897 when Ward v. Roberts &Co. (1897) 23 VLR 182 was decided it might well have been reasonable in the light of the practice of senior counsel in that time, to regard the briefing of two counsel in every substantial case in the Supreme Court of Victoria as necessary or proper for the attainment of justice. But, with every respect to those who may think differently, I could not regard Madden C.J.'s decision in that case as warranting the conclusion that in every substantial case brought in the Supreme Court of Victoria today, the employment of two counsel is necessary or proper to that end. Significant changes have taken place in the meantime in the practices of senior counsel, and in the nature of the litigation with which the Supreme Court is concerned. Thus, whilst the principles have remained the same and are as expressed in reg. 29, their application in the contemporary scene may well produce conclusions which differ considerably from those drawn in earlier times in a different context of practice and of community life. (at p477)

12. Also, in my opinion, there has not been any rule in Australia, at least since the time of the first world war, "that it is, in general, proper that two counsel should be employed" in cases in the superior courts. The position is different in England as appears from the quotation I just made from the judgment of Parker L.J. in Gorfin v. Odhams Press, Ltd. (1958) 1 WLR 314, at p 317; (1958) 1 All ER 578, at p 580 . Consequently, English authorities with respect to the allowance of the fees of three counsel are apposite to the allowance of two counsel in Australia. Thus, I have felt the remarks of Parker J. in Peel v. London and North Western Railway Company (No. 2) (1907) 1 Ch 607 though made in relation to the engagement of three counsel in point in connexion with the present matter. (at p477)

13. It is of radical importance, in my opinion, to identify the question which is presented to the taxing officer upon objections such as were made in this case. That question concerns the allowance of the fees of more than one counsel. It is not concerned, certainly not directly concerned, with the question of the relative competence of members of the Bar, or of sections of the Bar. It is fundamentally concerned with the attainment of justice, which expanded into its elements, means that it is concerned with the presentation of a case to a court of law in such manner and to such extent that a just result is able to be achieved. As it is to be supposed that the success of the party incurring the fees of counsel will involve the opponent in their payment, the expenditure must be confined to what is necessary, which means reasonably necessary, or proper to ensure such a presentation of the case. Such a limitation on the expenditure recognizes that a litigant in his own sole interest may in all prudence not wish to venture into court with only such counsel as this limitation would allow. Parker J. expressed the distinction in Peel's Case (1907) 1 Ch, at p 613 . McArthur J. in Re Malleson, Stewart, Stawell and Nankivell (1931) VLR 127, at p 134 embodies the distinction in his formulation of a test which though made in a case involving a solicitor and client taxation is referable to the general limitation contained in the words "necessary or proper" in reg. 29. The emphasis throughout is upon obtaining an adequate presentation to enable justice to be done: it is not upon the propriety of the steps taken by a litigant to ensure the maximum of success in his own cause. That of course he may do but not, in my opinion, at his opponent's expense. (at p478)

14. As the question is whether the presentation of a case to ensure a just determination reasonably requires the services of more than one counsel, it is the nature and circumstances of the case which provide the determinants. The matter cannot as a general rule be determined by reference to the court in which the proceedings are taken, though the position of that court in the hierarchy of a judicial system may well be such that only cases of a complicated nature are generally litigated before it. (at p478)

15. This Court in Kroehn v. Kroehn (1912) 15 CLR 137 expressed a test for deciding whether the fees for two counsel should be allowed in a party and party taxation. The question propounded by Griffith C.J. when he says (1912) 15 CLR, at p 141 : "Would a prudent person not compelled by poverty come into Court in such a case without two counsel?" must be understood in relation to the basic matter in issue, which is the presentation of the case to ensure a just adjudication. The question is not whether a man in seeking his own maximum advantage would be imprudent not to engage counsel of a particular level of experience or skill. The question is whether the services of more than one counsel are reasonably necessary for the adequate presentation of the case. That this is so appears from a perusal of all the judgments in Kroehn v. Kroehn (1912) 15 CLR 137 . It is noticeable that all the participating justices agreed with the views of Gordon J. of the Supreme Court of South Australia which Griffith C.J. quotes (1912) 15 CLR, at p 142 . (at p479)

16. In my opinion, the result of the authorities and the meaning of the regulation is that the taxing master is to allow the fees of more than one counsel where he is satisfied that the nature and circumstances of the case are such that the services of two counsel are required if the case is to be presented to the court in such a manner that justice can be done between the parties. (at p479)

17. Of course, a litigant must make for himself a judgment on this question at the time he decides to incur the expenditure. He cannot be required to do more than act reasonably and prudently in relation to that matter. Consequently, in determining what is necessary or proper the taxing officer must consider whether it was reasonably necessary or proper in the sense I have indicated, for the litigant to decide at the appropriate time in the course of the litigation to engage more than one counsel. Many and varied circumstances may well yield an answer favourable to the successful litigant. Some are referred to in the judgment of Griffith C.J. in Kroehn v. Kroehn (1912) 15 CLR, at p 141 . I take his reference to the need for a careful cross-examination to be a reference, not to the need to employ a counsel noted for skill in cross-examination, but to the need for a careful preparation to cross-examine either involving the exertion of two counsel or a division of labour thus diverting one counsel's efforts from other parts of the preparation or presentation of the case. Other factors are indicated by McArthur J. in Re Malleson, Stewart, Stawell and Nankivell (1931) VLR, at p 133 and Parker J. refers yet to others in Peel's Case (1907) 1 Ch, at p 607 . But it seems to me to be unprofitable to attempt any exhaustive examination of what features of a case will justify the opinion that more than one counsel are required to conduct it if justice is to be done. The important matter is to recognize that the question is not whether one member of the Bar will present the case better than another. The question for the taxing master is whether the case by reason of any of its features, the volume of material to be handled, the number or character of the witnesses to be examined, the nature or extent of the cross-examination required, the anticipated length of the case, the complexity of its issues of fact or of law, the extent of the preparatory research of fact or of law to be undertaken, the involvement of charges of fraud, or other serious imputations of personal reputation or integrity, the complexity of the required presentation and so on, make it reasonably necessary or proper that the services of two counsel be engaged in order that the court may do justice between the parties. The refusal to allow a circuit rule to which counsel should conform to govern the allowance of more than one counsel, in my opinion, emphasizes the true nature of this principle. See Payne v. Schmidt (1949) 2 All ER 741 . (at p480)

18. Thus the level of experience in counsel required by the case will not be directly involved in considering whether or not to allow the fees of more than one counsel; but, whether one or more than one counsel is or are allowed, that level will be reflected in the amount of the fee allowed, or in some cases by the allowance of the fees of a senior and a junior counsel rather than the fees of two juniors in a case where the services of two counsel are held to be necessary or proper within the meaning of the regulation. (at p480)

19. It follows from these views that, in my opinion, the majority of the Full Court were in error in point of principle in their reasons for decision. The dissenting judge did allow the competence of junior counsel to conduct the case to be an element in his final decision, but otherwise, in my respectful opinion, did observe the correct principles to be applied. (at p480)

20. It also follows from what I have said that I do not accept the "test" put forward by the primary judge. It is not a question of the availability or competence of the junior bar. It is a question whether the case reasonably requires the services of two counsel. (at p480)

21. The instant case was of the simplest kind devoid of any complexity. In my opinion, with every respect, none of the circumstances adverted to in the judgments of the Supreme Court, the amount involved, the problems of presentation, the technical evidence expected to be given, or the transfer of the trial to the Supreme Court, warranted the employment of two counsel. (at p480)

22. Before concluding, I would wish to say that what I have said does not mean that running-down or factory accident cases are in a separate class of action for the purpose of taxation. The principles to which I have referred are generally applicable though by reason of its nature the running-down and the factory accident case will not, in my opinion, usually present any of those features which may render the employment of more than one counsel necessary or proper in the relevant sense. (at p481)

23. In my opinion, therefore, the appeal should be allowed, the order of the Full Court set aside, and the appeal to that Court dismissed, each party bearing his own costs. (at p481)

24. In conformity with the order the Court made when granting special leave to appeal the appellants will pay the respondent's costs of this appeal, including the costs of the application for leave to appeal. (at p481)

McTIERNAN J. This matter began with the taxation of the plaintiff's bill of costs. His solicitor retained senior counsel to conduct his case. The only issue for trial by the jury would have been the quantum of damages, liability having been admitted. The taxing master was of the opinion that the medical evidence caused a degree of complexity in the plaintiff's case and allowed fees for the senior counsel. An application on the part of the defendants to review the taxing master's decision was made before Hudson J. who disagreed with the view which the taxing master took. His Honour said: "The question is whether it was necessary or proper to incur the costs for the attainment of justice. What is proper for this purpose involves a question of what is reasonable and prudent in the circumstances and if in any case there are available competent junior counsel sufficiently experienced to present the case and conduct the trial in a satisfactory manner, it is proper that such counsel should be employed. The employment of senior counsel to lead in such circumstances amounts to a luxury or to over-caution, the expense of which cannot be justly thrown on the opposing party." Upn appeal the Full Court (Winneke C.J., Smith and Little JJ.) were all of the opinion that Hudson J. did not correctly apply O. LXV, r. 27, reg. 29. The Chief Justice and Smith J. were of the opinion that the employment of senior counsel was warranted. Little J. dissented. This Court gave special leave to appeal. The facts are set out in the reasons of each judge. (at p481)

2. In my judgment the action with which the Court is now concerned had the elements necessary to support a case for the allowance of costs of senior counsel. It was necessary, or at least proper, for the solicitor for the plaintiff, in endeavouring to get justice for the plaintiff and in defending his rights, but without undue expenditure of money, to employ a senior counsel in addition to a member of the outer bar. As the action was settled we have not the advantage of being able to consider occurrences in court which may have had some bearing on the wisdom of retaining senior counsel. A passage in the reasons for judgment of Smith J. was criticized in argument. His Honour said it is a question which should not be overlooked "whether it is proper to engage senior counsel in order to lessen the risk that with a junior conducting the case there may be a failure, in the particular case, to do what ought to be done". His Honour's own observation recalls a statement of Kekewich J. in London, Chatham, and Dover Railway Company v. South-Eastern Railway Company (1889) 60 LTR 753 : "The solicitor's duty, with the assistance of junior counsel, is to bring the case into court armed at all points. It is the leader's duty in the conduct of the case to use his armour and his weapons in the most effective way which the exigencies of the moment dictate" (1889) 60 LTR, at p 756 . However, I do not think that Smith J. regarded his observation as critical in arriving at his conclusion. (at p482)

3. It seems to me that a case for the employment of a leading counsel is supported by the following considerations. In the action the plaintiff claimed a substantial amount of damages because his most serious injury was a dislocated hip in which osteo-arthritis was developing. He was a young labourer under twenty-one years of age when he brought the action and, according to the reports of eminent medical specialists about his condition, he was facing a bleak future as the disease of his hip strongly portended both diminished earning capacity and a life of pain and suffering. The action was compromised for the sum of 3,000 pounds and the settlement required the defendants to pay not only that amount, but also the plaintiff's taxed costs. It is not clear how many days the trial of the action would have occupied. The three medical witnesses would very likely have been called on behalf of the plaintiff and, of course, he himself would certainly have given evidence. It is not unlikely that there may have been controversial evidence as to economic loss. Two medical specialists had examined the plaintiff on behalf of the defendants and it is no doubt probable that both of them would have given evidence and been closely cross-examined. It cannot be supposed that there would not have been a conflict of evidence on questions of fact and opinion or no issue as to the future earning capacity of the plaintiff or as to the extent to which his injury would deprive him of the enjoyment of life. Nor can it be supposed that the amount of damages to which the plaintiff was entitled would not have been strongly contested. Such matters as these are, of course, frequently encountered in motor accident cases. I think that it is an undue minimization of the serious nature and substantiality of the case to the plaintiff specially to sum it up merely as a simple case and on that ground to hold that it was a luxury or over-caution to employ senior counsel. The plaintiff was an infant and it was reasonably prudent for his solicitor to retain a senior counsel to take part in the preparation of his case and then to conduct it in court. (at p483)

4. It has been pointed out that under provisions similar to O. LXV, r. 27, reg. 29, a "very wide" discretion is given to the taxing master. See Halsbury's Laws of England, 3rd ed., vol. 30, p. 429. The regulation applies without discrimination to all cases not excepted from its operation. There is no ground for applying a stricter test to fees for senior counsel engaged by a plaintiff in a negligence action than in any other case. I think that it is entirely consistent with reg. 29 and suitable to its provisions to allow to the plaintiff on a party and party taxation his proper expense incurred by retaining senior counsel having regard to the circumstances of the present case. (at p483)

5. I think that the conclusion reached by the majority of the Full Court is supported by two decisions in this Court: Kroehn v. Kroehn (1912) 15 CLR 137 and Smith v. Madden (1946) 73 CLR 129 . In the latter case Dixon J. (as he then was) said (1946) 73 CLR, at p 132 : "I think that in this Court taxing officers ought not to treat the briefing of two counsel upon a trial as exceptional and as requiring something special in the case to warrant it, but, on the contrary, should treat it as usual and proper unless it happens that the proceedings are simple and not heavy and involve no question of consequence, a thing which, of course, may quite well happen, particularly when the jurisdiction depends, as here, on diversity of residence: See Porter and Wortham, Guide to Costs, 13th ed., pp. 902, 903; Halsbury's Laws of England, 2nd ed., vol. 2, p. 551; and per Madden C.J., Ward v. Roberts &Co. (1897) 23 VLR 182, at p 185 ." It should be noticed that his Honour did not merely say that a case which is not simple or not heavy or involves no question of consequence does not warrant two counsel. These characteristics are stated cumulatively. Where a case is simple and not heavy and involves no question of consequence it is not usual or proper to treat it as warranting two counsel even though the court is the High Court or a State Supreme Court. It could not be anticipated that the present case would be heavy but to attain justice for the plaintiff substantial work had to be done. The proper protection of the plaintiff was likely to demand of counsel more than asking the witnesses simple questions and addressing the jury on readily understood facts. Winneke C.J. made some observations which I think ought to be quoted because, in my view, they demonstrate that the case is of the kind in which it is usual and proper under r. 27 to brief two counsel. His Honour said: "In determining the matter for itself, I think the Court must have regard to the situation facing the plaintiff and his advisers at the time when the decision to brief senior counsel was taken, and to treat the engagement of such counsel as a reasonable and proper precaution, and not due to over-caution, if at that time the action could fairly be regarded as one of real substance. This approach, in my opinion, is justified and required by the reasoning of Dixon C.J. in Smith v. Madden (1946) 73 CLR 129 , of Lowe J. in Preston v. Preston (1936) ALR 104 , and of Mann C.J. in Freeman v. Freeman (1939) ALR 483 , with which, if I may respectfully say so. I am in full agreement. Approaching the matter in that way, the decision to engage senior counsel in the present case must be viewed in the light of what appear to me to be several important considerations. It had been ascertained that the injuries suffered by the plaintiff were much more serious than was supposed at the time the proceedings were commenced, and by its transfer to the Supreme Court the nature of the action had, notwithstanding the admission of liability, undergone a substantial change. It had become apparent from the reports obtained from the plaintiff's specialists that he was likely to be confronted with an ultimate permanent disability of a substantial nature, the seriousness of which lay in the onset of osteo-arthritis in the hip, with a distinct possibility in the expressed view of one of those specialists of that disease progressing over a period of ten to fifteen years to a degree that would require an arthrodesis. The plaintiff, presenting the appearance of a young and healthy man who had returned to hard labouring work and active participation in vigorous sport, would be faced with the difficulty of inducing a jury to appreciate the full significance of an injury which would only manifest its seriousness in the future, and progressively over a lengthy period of time. In this connexion it is material to say that his appearance before the jury, would be likely to seem consistent notwithstanding the lapse of three years since the occurrence of the accident, with the excellent result mentioned in the hospital report. The sum involved for the plaintiff was likely to be substantially influenced by the view taken by the jury of the degree to which, and the time within which, the osteo-arthritis would probably develop in the future, and as the plaintiff had been examined by two specialists on behalf of the defendants the possibility had to be faced of a sharp conflict of expert opinion on these vital issues of the case. If such conflict occurred, cross-examination of the opposing experts and ultimate presentation of the plaintiff's case to the jury, could have a very material bearing on the amount of the verdict likely to be obtained by him. The case was one in which, it seems to me, the plaintiff and his advisers were faced with a wide margin between possible minimum and maximum verdicts. The cumulative effect of the above-mentioned considerations, viewed as I think it should be in prospect and not in retrospect, was to present the plaintiff and his advisers with substantial difficulties which, in the future conduct of the litigation, could have a marked bearing upon the amount he was likely to recover, and accordingly upon his comfort and security in later life. In my opinion those considerations justify the action in being regarded as one of importance to the parties and of real substance." (at p485)

6. I refer to the case of Gorfin v. Odhams Press, Ltd. (1958) 1 All ER 578 . The observations of Parker L.J. at p. 580 to which the editorial note directs attention are important; also an observation of Donovan J. (1958) 1 All ER, at p 579 . (at p485)

7. In my opinion the appeal should be dismissed. (at p485)

TAYLOR AND OWEN JJ. We agree, for the reasons which have been given by the Chief Justice and Menzies J., that upon this appeal we are required to make a discretionary judgment on the issue involved. Briefly that issue is whether it was "necessary or proper for the attainment of justice or for defending the rights" of the respondent to incur the expenditure involved in briefing two counsel on the hearing of the respondent's action (O. LXV, r. 27, reg. 29). Much has been written concerning the phrase which we have quoted but in the end the problem is one to be resolved upon a consideration of the nature of the case, its importance and its complexities, the desirability of a division of labour and so on. For obvious reasons it is impossible, and in this case unnecessary to attempt, to state exhaustively what the relevant considerations are. It is sufficient to do no more than to refer to the terms of the general rule itself. (at p485)

2. We say this because, subject to one qualification which we shall mention immediately, it was not suggested that there was any feature involved in or associated with the plaintiff's action which rendered it either necessary or proper for the attainment of justice that two counsel should be briefed. The argument, as we see it, is that it was a case in which it was necessary or proper, in the sense in which the rule uses that expression, that senior counsel should be briefed on the plaintiff's behalf and that, since according to the practice of the bar this could not be done without also briefing junior counsel, it was also necessary and proper that this should be done. (at p486)

3. If reasonable prudence made the briefing of senior counsel appropriate the expenditure incurred by the briefing of junior counsel would also be both necessary and proper. The first decision having been made it would follow as a matter of course that the services of senior counsel could not be obtained unless junior counsel was also briefed. We do not think that the case of Payne v. Schmidt (1949) 2 All ER 741 decides anything to the contrary. In that case the difficulty arose because the solicitor for the plaintiff desired to obtain the services of a particular counsel and since he was not a member of the circuit upon which the case was to be tried it was necessary, because of a circuit rule, that a second counsel should be briefed with him. There is, we think, a vast difference between that case and the present one where the difficulty is brought about, not by the desire of the plaintiff to obtain the services of some particular counsel, but by his decision, or that of his legal advisers, that the case was one in which it was appropriate to brief senior counsel. The decision is, however, not without some importance on another aspect of the case since the Court of Appeal refused to accept the proposition that the action in which counsel was engaged - an action for damages for personal injuries - was one in which ordinarily, and quite apart from the circuit rule, it would have been proper to allow the fees of two counsel on a party and party taxation. (at p486)

4. The present case, it seems to us, therefore resolves itself into a question whether it was "necessary and proper for the attainment of justice or for defending the rights" of the plaintiff to brief senior counsel. As the learned judge of first instance said: "The question is whether it was necessary or proper to incur the costs for the attainment of justice. What is proper for this purpose involves a question of what is reasonable and prudent in the circumstances." That question is, of course, a practical one and what may be regarded as a prudent course or an over-cautious course can be determined only by considering whether the case was one which the plaintiff's advisers might reasonably have regarded as calling for skill and experience beyond that of the junior bar. We agree with his Honour and with the dissenting judge of the Full Court that the case was a "simple one" and not a "heavy one" and that it did not present any features which could be said reasonably to call for skill and experience beyond that of the junior bar. To hold otherwise would, in our view, be to hold that the employment of both senior and junior counsel, at the expense of an unsuccessful party would be justified in any, or practically any, action in the Supreme Court. This is not a proposition to which we are prepared to subscribe and we are, therefore, of the opinion that the appeal should be allowed. (at p487)

MENZIES J. The present respondent sued the present appellants for unspecified damages for injuries sustained by him in a collision between two motor-cars. The respondent was a passenger in the car driven by the first-named appellant; the second-named appellant was the driver of the other car. The action was commenced in the County Court at Melbourne. The defendants admitted liability. Thereafter the plaintiff applied to transfer the action to the Supreme Court and an order for transfer was made by consent. This application was made because the plaintiff's advisers had come to take a more serious view than had at first been entertained of the plaintiff's injuries, and the limit of 2,500 pounds upon the jurisdiction of the County Court to award damages was thought to be too low. The action was settled before it came on for hearing on terms that the defendants should pay 3,000 pounds damages and costs to be taxed. Judgment for the plaintiff was by consent given for costs to be taxed. (at p487)

2. For the plaintiff there was delivered a bill of costs containing items in respect of brief and other fees paid to one of Her Majesty's counsel and to a member of the outer bar. Objection was taken to fees paid to senior counsel. The taxing master overruled the objections and allowed the fees. A summons to review the taxing master's certificate was heard by Hudson J. who, finding that the taxing master's discretion had miscarried, considered the objections for himself and allowed them. The certificate of the taxing master was amended accordingly. The present respondent appealed against the order of Hudson J., and the Full Court (Winneke C.J. and Smith J., Little J. dissenting) allowed the appeal. Special leave was granted to appeal against the decision of the Full Court. In these circumstances, the questions for this Court now are - (1) whether the taxing master's discretion miscarried; (2) if so, whether Hudson J.'s discretion miscarried; (3) if so, whether the Full Court's discretion miscarried; and (4) if so, whether the briefing of two counsel was necessary or proper for the attainment of justice and for defending the rights of the respondent. (at p487)

3. The respondent's case for trial, as I see it, was not a heavy one nor one involving any special difficulty. It concerned the assessment of damages only and involved satisying the jury that, notwithstanding his apparent speedy and complete recovery from his injuries, damages should be assessed on the footing that the plaintiff, as a result of the accident, faced the possibility of the development of osteo-arthritis causing (1) serious disability in ten years' time and (2) a gross incapacity later which could require an arthrodesis, with the consequence that he would be partially crippled when aged somewhere between thirty-five and forty years. To support a case for the assessment of damages on this basis it was intended to rely upon radiological evidence and the evidence of two orthopaedic surgeons. A conflict of expert testimony was, of course, to be expected. Such a conflict is an everyday occurrence in cases concerning claims for damages or compensation for personal injury and every counsel who practises before any tribunal hearing such cases is familiar with the problem of handling such a conflict. (at p488)

4. The Supreme Court Act 1958 (Vict.), s. 32 (1), provides as follows:
"Subject to the provisions of this Act and to Rules of Court and to the express provisions of any other Act the costs of and incidental to all proceedings in the Court including the administration of estates and trusts shall be in the discretion of the Court or Judge and the Court or Judge shall have full power to determine by whom and to what extent the costs are to be paid." The Rules of the Supreme Court made by the Judges under the authority of the Supreme Court Act provide for the taxing of costs by the taxing officer and for the determination of the costs to be allowed. Rule 27 of O. LXV contains the following provisions: - "(29) On every taxation the taxing officer shall allow all such costs, charges, and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party: Provided that in taxations as between party and party no costs shall be allowed which have been incurred or increased through over caution or by payment of special fees to counsel or special charges or expenses to witnesses or other persons or by other unusual expenses." . . . "(47) Where the costs of retaining two counsel may properly be allowed such allowance may be made, although both such counsel may have been selected from the outer bar." (at p488)

5. I agree with Hudson J. and with all the members of the Full Court that the discretion of the taxing master miscarried and it became a case for Hudson J. to exercise his own discretion in the matter. Hudson J. said: "The question is whether it was necessary or proper to incur the costs for the attainment of justice. What is proper for this purpose involves a question of what is reasonable and prudent in the circumstances and if in any case there are available competent junior counsel sufficiently experienced to present the case and conduct the trial in a satisfactory manner, it is proper that such a counsel should be employed. The employment of senior counsel to lead in such circumstances amounts to a luxury or to over-caution, the expense of which cannot be justly thrown on the opposing party. In my opinion the present case was a simple one, particularly in view of the admission of liability by the defendants. . . . The questions that did arise for determination on this issue were not complicated and did not involve any lengthy examination of evidence nor any great difficulty in presenting to the jury the facts and inferences on which the assessment of plaintiff's damages depended. I have outlined what was involved, and to suggest that this might reasonably be considered to be beyond the capacity of a member of the outer bar accustomed to conduct such cases, of whom there are many, is to pay a poor tribute to the junior bar of this State." (at p489)

6. I agree too with all the members of the Full Court that the statement of Hudson J. which I have quoted, even when understood as not requiring more than an assessment whether or not the case would be within the competence of a member of the outer bar, is too restrictive and cannot be regarded as an exhaustive statement of the circumstances in which it would be reasonable and prudent to brief two counsel. There are, it seems to me, a wide variety of circumstances in which a man who could afford to do so would reasonably and prudently in his own interests seek the services of two counsel, notwithstanding the expense. The weight of the case is probably the most common reason for employing two counsel but that is by no means the only reason for doing so. The need for special skill is another common reason. Furthermore, when assessing what a litigant who is reasonable as well as prudent and is not embarrassed by lack of means would choose to do, it is not to be disregarded that there is an inner and an outer bar and that, as a general rule, the most skilful and the most experienced counsel are within the inner bar. The existence of an inner bar, the gateway to which is closely guarded to maintain the standing of those who enter, is itself a clear indication to those outside the profession that special skill is to be found within that bar. Accordingly, I do not think it could be regarded as over-cautious for a litigant with a case, difficult without being heavy, to obtain the services of senior counsel, even if only for some particular purpose such as to cross-examine a witness or to argue a decisive point of law. Senior counsel cannot, according to existing practice, be briefed without a junior and the circumstance that the case is a proper case for counsel of special skill accordingly makes it a proper case for two counsel. (at p490)

7. It is important, too, to keep in mind that the question whether the briefing of two counsel is necessary or proper to attain justice or to protect a party's rights must always be looked at from the point of view of the party who has to make the decision before trial. The Rules of the Supreme Court no doubt protect the one party's pocket from demands following the other party's unreasonable expenditure, but that pocket is not to be considered in deciding whether the briefing of two counsel was a reasonable or an excessive precaution. (at p490)

8. I agree, therefore, with the decision of the Full Court that it was called upon to exercise a discretion of its own. (at p490)

9. It is therefore for us now to decide whether or not the discretion of the Full Court miscarried, and to do this requires a close examination of the separate reasons given by the judges who constitute the majority. This must be done in the light of the well-known principle conveniently stated by Kitto J. in the passage from Australian Coal and Shale Employees' Federation v. The Commonwealth (1953) 94 CLR 621, at p 627 , cited by the Chief Justice of the Supreme Court in this case. The principle that must guide us is that an appeal court should affirm a discretionary judgment unless it is satisfied that there was error in the manner of arriving at the judgment. (at p490)

10. It appears to me that an important, if not the decisive, consideration influencing the Chief Justice to decide that the case was one for briefing two counsel was that the action had been transferred from the County Court at Melbourne to the Supreme Court. Thus, his Honour said: "It had been ascertained that the injuries suffered by the plaintiff were much more serious than was supposed at the time the proceedings were commenced, and by its transfer to the Supreme Court the nature of the action had, notwithstanding the admission of liability, undergone a substantial change." Later in his judgment, after referring to the wide range between possible minimum and maximum verdicts presenting the plaintiff and his legal advisers "with substantial difficulties" justifying the action "being regarded as one of importance to the parties and of real substance", his Honour went on to say: "It is also not without significance that this action was begun, and in my opinion rightly begun, in the County Court, and the appellant's advisers briefed counsel appropriately experienced for that jurisdiction. When the action was transferred, and be it noted with the consent of the respondents, to the Supreme Court, there was in my opinion nothing unnecessary, or improper, or over-cautious in bringing in counsel whose experience and seniority corresponded to the increased importance and substantiality acquired by the action in virtue of its transfer to the Supreme Court." It seems to me, with respect, that his Honour wrongly attributed significance to the transfer of the action from the County Court at Melbourne to the Supreme Court. The Rules of the Supreme Court which I have quoted of course assume proceedings in the Supreme Court and govern the taxing of costs in such proceedings. It cannot be of significant importance in deciding whether the attainment of justice in the Supreme Court makes proper the employment of two counsel, that the action is in the Supreme Court because it has been transferred there from a county court. What is significant is the importance and difficulty of the case as it stands in the Court for hearing at the time when counsel are briefed. (at p491)

11. The core of the reasoning of Smith J. appears in an observation made by that learned judge in considering the judgment of Hudson J., but the opinion so expressed was unquestionably carried forward into the reasoning which brought his Honour to the conclusion that the case was one for the employment of two counsel. His Honour said: "In my view the plaintiff is right in saying that the proposition which his Honour stated and proceeded upon in these passages" (these are the passages already quoted) "cannot be accepted as correct. Its persuasiveness arises, I think, from the fact that one tends to assume, without justification, that what the competent junior is sufficiently experienced to do, he will necessarily do in the particular case. And in this way one is led to overlook the critical question of whether it is proper to engage senior counsel in order to lessen the risk that with a junior conducting the case there may be a failure, in the particular case, to do what ought to be done." Were the test to be as here indicated, its application, so it seems to me, would always lead to the allowance of two counsel, for when could it not be said that the employment of two counsel would lessen the risk of one counsel failing to do what ought to be done? It is true that counsel may err but, having regard to the terms of the rule, the possibility of error on the part of one cannot, in itself, be regarded as making proper the employment of two. (at p491)

12. Because I find myself unable to accept the course of reasoning followed by the learned judges who constitute the majority of the Full Court, I must consider the merits of the case for myself and, having done so, I find myself in agreement with Little J. The respondent's case against the appellants was, as Hudson J. said, a simple case. If this were a case for the employment of two counsel - silk and junior, or two juniors - then there could hardly be a contested case in the Supreme Court where it could be said that a reasonable and prudent litigant would not, if he could afford it, engage two counsel. The Rules of the Supreme Court, however, indicate clearly enough that there will be cases in the Supreme Court for the proper conduct of which it would be over-cautious to employ two counsel. This, it seems to me, was such a case and I say this recognizing that it may well be that the plaintiff's chances of obtaining maximum damages were improved by the employment of one of Her Majesty's counsel. It is, however, to the defence of rights and the attainment of justice that O. LXV, r. 27, reg. 29 commands attention - not to a plaintiff's natural liking for, or to a defendant's natural dislike of, the last penny of damages. (at p492)

13. I would therefore allow the appeal. (at p492)

Orders

Appeal allowed. Order of the Full Court of the Supreme Court of Victoria set aside and in lieu thereof order that the appeal to that Court be dismissed, each party to bear his own costs of that appeal.

In conformity with the order for costs made by this Court when granting special leave to appeal, the appellant will pay the respondent's costs of this appeal, including the costs of the motion for special leave to appeal.