Walker v Law Society of Tasmania (No 2)

[1991] TASSC 188

Serial No B74/1991
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Walker v Law Society of Tasmania (No 2) [1991] TASSC 188; B74/1991

PARTIES:  WALKER
  v
  LAW SOCIETY OF TASMANIA

FILE NO:  M309/1990
DELIVERED ON:  13 December 1991
JUDGMENT OF:  Crawford J

Judgment Number:  B74/1991
Number of paragraphs:  7

Serial No B74/1991
File No M309/1990

WALKER and ORS v THE LAW SOCIETY OF TASMANIA (NO 2)

REASONS FOR JUDGMENT  CRAWFORD J

13 December 1991

1. The unsuccessful respondent has applied for an indemnity certificate pursuant to the Appeal Costs Fund Act 1968 s8(1). Strictly speaking, it might be said that the proceedings did not constitute an "appeal" but counsel for the respondent submitted that I have jurisdiction to grant the indemnity certificate because of the special provisions of the Act.

1. The proceedings which came before me were instituted pursuant to O80, r102 of the Rules of Court which provides that if any party is dissatisfied with the certificate or allocatur of a taxing officer as to any item which has previously been objected to that party may "apply to a judge at chambers for an order to review the taxation as to the same item .... and the judge may thereupon make such order as he may think just ..... "

1. The relevant provisions of the Appeal Costs Fund Act 1968 are:

"8–(1)  Where an appeal –

(a) to the Supreme Court from a decision of –

(i)       some other court;

(ii)      a board or other body or person from whose decision there is an appeal to a superior court or who may state a case for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court; or

(iii)     the Master;

(b)      to the Full Court of the Supreme Court from a decision of that Court held before a single judge or a judge in chambers; or

(c)      to the High Court of Australia from a decision of the Supreme Court,

succeeds, the Supreme Court may, on application made in that behalf, grant to the respondent to the appeal or to one or more of several respondents to the appeal an indemnity certificate in respect of the appeal."

"2       In this Act, unless the contrary intention appears –

'appeal' includes a motion to review, a case stated for the opinion or determination of a superior court on a question of law, a question of law reserved in the form of a special case for the opinion of a superior court, a motion for a new trial, and any other proceeding in the nature of an appeal;"

1. I am satisfied that the application for an order to review the taxation was an "appeal" within the meaning of that word provided in the Act. The application was similar to a motion to review and, in any event, it can properly be described as a "proceeding in the nature of an appeal". On the hearing of the application, I was obliged to review the decision made by the taxing officer and to make such order as I thought just.

1. The taxing officer falls within the description, in s8(1)(a)(ii) of a "person from whose decision there is an appeal to a superior court" applying to the word "appeal" the meaning attributed to it by s2.

1. The decision of the Full Court of Victoria in Blackall v Trotter (No 2) [1969] VR 946 is strong authority for concluding the question in favour of the respondent Society.

1. On the hearing of the application for the certificate I indicated to counsel for the respondent Society that subject to being satisfied that I had jurisdiction, I would exercise my discretion and grant the certificate. Accordingly, for the reasons I have given I grant to the respondent Society an indemnity certificate in respect of the application for an order to review the taxation.