Crusader Plate Company Pty Ltd v Council of the City of Gladstone [1991] QSC 349

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts I George Street, BRJSBA.NE, 0. 4000 'f el. (07) 227.4360 (Copyright in this transcript is vested . in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State ReportL7 g Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 121 of 19~9 CRUSADER PLATE COMPANY and THE COUNCIL OF THE CITY OF GLADSTONE ROCKHAMPTON .. DATE 29/11/91 JUDGMENT 1 ..,, REvisEo coP1Es ,SSti"ol Court R,:,porting Bureau t ·.~ ~at:2f / ~. !.LLJ Plaintiff Defendant -- 1 of 9 -- 10 ?.O 281191 JUDGMENT HIS HONOUR: In this matter I have reduced my reasons to writing which I publish. The appeal is allowed with costs and disallowance of senior counsels' fees set aside. kne bill of the costs is remitted to the Taxing Officer for him to determine the appropriate amounts for the i terns in- _respect of which disallowance has been set aside. 10 20 30 so co ! (0 -~, ! G 21-1 ·-,:,~~l~·F,.c,te;. C,:rl·-· ·-·- . ', ! .·• . 2.. ! ! . / ! ' -- 2 of 9 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON BETWEEN: AND: No. 121 of 1989. CRUSADER PLATE COMPANY PTY LTD Plaintiff COUNCIL OF THE CITY OF GLADSTONE Defendant JUDGMENT - DEMACK J. DELIVERED the 29th day of November 1991. CATCHWORDS: Costs - Application for review of taxation of Bill of Costs - Taxing Officer disallowed Senior Counsel's fees, conferences with former senior employees of Defendant, items relating to inspection of the Defendant's documents by Plaintiff's solicitor; care and consideration. Appeal allowed in relation to disallowance of Senior Counsel's fees -- Taxing Officer's assessment of items under two heads not in error; care and consideration not considered. COUNSEL: Mr G. ROBINSON for Applicant/Defendant Mr D. REID for Respondent/Plaintiff SOLICITORS: TONY GOODWIN & CO for Applicant/Defendant V.A.J. BYRNE & CO for Respondent/Plaintiff HEARING DATES: 8th November, 1991. -- 3 of 9 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON BETWEEN: AND: No. 121 of 1989. CRUSADER PLATE COMPANY PTY LTD Plaintiff COUNCIL OF THE CITY OF GLADSTONE Defendant JUDGMENT - DEMACK J. DELIVERED the 29th day of November 1991. This is an application for the review of the taxation of the Defendant's Bill of Costs. The action concerned the use of certain improvements on land in Gladstone which was owned by the Plaintiff. Very briefly, Queensland Alumina Limited built a caravan park, with the Defendant's consent, and when it had no further use for the caravan park, it sold the land to the Plaintiff. The Plaintiff contended that it had the right to use the land as a caravan park. The Defendant denied this, and was successful at the trial of the action. It submitted a Bill of Costs which was substantially disallowed by the Taxing Officer. While many items in the Bill are subject to review, they can be grouped under four headings:- 1. Disallowance of Senior Counsel's fees. 2. Disallowance of conferences with former senior employees of the Defendant. -- 4 of 9 -- 2 3. Disallowance of i terns in respect of inspection of the Defendant's documents by the Plaintiff's solicitor. 4. Care and consideration. In respect to the fourth item, Mr Robinson, who appeared for the Defendant, sought a review only if he was unsuccessful on the question of the fees of Senior Counsel. The basis upon which a review such as this takes place is well known, and is conveniently expressed in the judgment of Kitto J. in Australian Coal and Shale Employee's Federation v. The Commonwealth (1953) 94 C.L.R. 621. From that judgment it appears that the most succinct statement fell from Jordan C.J. in Schweppes Ltd v. Archer (1934) 34 S.R. (N.S.W.) 178, at pp. 183, 184:- "In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer's decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances: Western Australian Bank v. Royal Insurance Co. (1908) 7 C.L.R., at p. 388: Clark, Tait & Co. v. Federal Commissioner of Taxation (1931) 47 C.L.R. 142, at pp. 145-146, but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will do so only in an extreme case." -- 5 of 9 -- 3 SENIOR COUNSEL In giving his answer to the Defendant's objection to his disallowance of Senior Counsel's fees, the Taxing Officer said:- "The defendant chose to brief Senior Counsel. On taxation, I held that the briefing of Senior Counsel in this action was not justified. It follows that all costs associated with briefing Senior Counsel were disallowed. I considered the provisions of 0. 91 R. 91 R.S.C .. So far as I am aware the leading authority on the employment of two Counsel is Kroehn -v- Kroehn (1912) 15 C.L.R. 137. Kroehn -v- Kroehn wasexamined and explained by the High Court in Stanley and another -v- Phillips (1966) 115 C.L.R. 470. I refer also to Smith and another -v- Madden and another (1946) 73 C.L.R. 129. This was a trial in the Supreme Court of Queensland. was it a trial that passed the tests set out in Kroehn? I say it did not. I confirm my disallowance of the costs of Senior Counsel. I am aware that the Plaintiff briefed two Counsel." It is clear from this that the Taxing Officer has the relevant principles in exercising his considered discretion. However, it appears from Stanley v. Phillips (1966) 115 C.L.R. 470 that in respect of the briefing of Senior Counsel, the Court enjoys an advantage that it does not necessarily have in respect of many items in a Bill of Costs. The judgments of Barwick C.J. and Menzies J. particularly contain much that is clearly derived from their experience both at the Bar and on the Bench. While it is not concerned with the retaining of Senior Counsel, Rich J. 's judgment in Clark, Tait and Company and another v. The Federal Commissioner of Taxation (1931) 47 C.L.R. 142, begins with words that I can echo:- "I have had the advantage not enjoyed by the learnedRegistrar of hearing a number of land tax cases, and -- 6 of 9 -- 4 am therefore in a better position to appreciate matters which perhaps have not been brought to theattention of the Registrar: the discretion of the Court is to be exercised upon its own knowledge of the circumstances of the particular case (WesternAustralian Bank v. Royal Insurance Co. (1908) 7 C.L.R. 385, at p. 388." With respect to the experienced Taxing Officer, this was a case when a prudent person in the shoes of the Defendant, not compelled by poverty, would come into court with two counsel. The facts themselves could be presented readily enough by one counsel, but the issues of law raised by the Plaintiff contained points of novelty that had to be carefully considered and responded to. The question of the jurisdiction of the Supreme Court to hear a matter which could appear to be a town planning appeal required careful consideration. In such a situation, the old adage that two heads are better than one has its place. Further, the Council was obliged to uphold its By-laws, but its records showed that at times Councillors and staff tried to find ways of using the caravan park which had been built by Queensland Alumina Limited. In such a case, the experience and standing of Senior Counsel was needed to ensure that the essential issues for the Defendant were fully pursued. It was a very significant case for the Defendant that tested its determination to enforce its decisions. I am therefore of the opinion that the appeal in respect of the. disallowance of Senior Counsel's fees should be allowed, and the matter should be remitted to the Taxing Officer for the determination of appropriate amounts for the items affected by this ruling. -- 7 of 9 -- 5 DISALLOWANCE OF CONFERENCES WITH FORMER SENIOR EMPLOYEES OF THE DEFENDANT Under this heading, several items were disallowed and one i tern substantially reduced. The action involved a careful perusal of Council records, and the · first of these i terns, which puts the matter in context, read:- "May 9 287 Attending witness Swenson conferring on history of action preparatory to obtaining particulars for proof of evidence (2.5 hours@ $100.00) (16a)". The Taxing Officer's answer to the objection to this disallowance was:- "Item 287. The witness Swenson is a former employee of the defendant ( Town Clerk in fact). The defendant's files were available. Objection overruled." In my opinion, the Taxing Officer's decision here should not be interfered with. The items which are appealed from are but a number of many items dealing with the preparation of the case. While the Defendant's solicitor may, out of an abundance of caution, consult the former Town Clerk, this is not a matter that must necessarily be allowed on party and party taxation. The Taxing Officer has not been shown to have erred in respect of these items. INSPECTION OF THE DEFENDANT'S DOCUMENTS BY THE PLAINTIFF'S SOLICITOR There are two items which fall under this heading, which are as follows:- "701 Attending Solicitor. for Plaintiff to continue with inspection of documents for 2.1 hours (16a). -- 8 of 9 -- 725 6 Attending Solicitor for Plaintiff to produce above permit for inspection and to produce Building Register and further documents for inspection for 1 hour ( 1 6a) . " In each instance, the Taxing Officer substantially reduced the fee for the item. He gave his reasons:- "Item 701. This claim was not disallowed in full. In my opinion the award was adequate having regard to the volume of documents inspected." The issue is solely one of quantum. There is a reasonable argument that the time involved was determined by the Plaintiff's solicitor, and no reduction was called for. The Taxing Officer has considered the documents involved and made his assessment. have erred. CARE AND CONSIDERATION I am not satisfied he has been shown to In view of Mr Robinson's concession and my decision about Senior Counsel, it is not necessary to consider this matter any further. DECISION The appeal is allowed with costs; disallowance of Senior Counsel's fees set aside; Bill of Costs remitted to the Taxing Officer for him to determine the appropriate amounts for the i terns in respect of which his disallowance has been set aside. -- 9 of 9 --