Clark Tait and Company v Federal Commissioner of Taxation [1931] HCA 26

H.C. or A.

1931.

ez)

Sypyey, Aug. 8, 9.

Rich J.

HIGH COURT

{HIGH COURT OF AUSTRALIA.)

CLARK, TAIT AND COMPANY AND ANOTHER AND

THE FEDERAL COMMISSIONER OF Resy TAXATION . : 2 % : "

Costs—Laxation—A peal from Registrar—Land tax—Crown leascholds in Que —Hearing in Sydney—Witnesses from Queensland —Expenses—Cé Melbourne counsel employed —Fees for days before hearing commenced —R for Saturday and Sunday—Fees disallowed—Melbourne solicitor a taxation in Sydney—Costs allowed. F

'The appellants successfully appealed to the High Court against an. ment to land tax of certain Crown Ieaseholds in Queensland and obt order for costs in their favour, 'The appeal was heard in Sydney, and senior and junior counsel were employed by the appellants. The Di Registrar who taxed the appellants' bill of costs disallowed certain some wholly and others in part. 'The appellants took out a summons to the Registrar's decision.

Held, (1) that the appellants were entitled to (a) the costs of typing 'evidence in another similar case relating to land tax ; (b) the costs of a Qu land stock and station agent and valuer for qualifying fees, collectio evidence, travelling expenses and attendance in Sydney, though he called as a witness; and (c) the costs of a station manager from Queen who attended in Sydney for the purpose of assisting counsel and solicit dissecting station books and records, but who was not called, though avai to give evidence ; (2) that the Registrar had properly disallowed part amounts claimed as the costs of copying documents including a counsel and evidence of witnesses in another similar case and of pr

of the case began and refreshers paid for Saturday and Sunday should allowed, but that an allowance should be made in respect of fees paid to during an adjournment (except for Saturday and Sunday) granted for p tion of counsel's addresses and that in determining the amount to be all for counsel's fees regard should be had to the complexity of the case

47 C.L.R.] OF AUSTRALIA. 143

the fact that counsel from another State were engaged in it ; (4) that this wasa H. C. or A.

proper case for the attendance on taxation in Sydney of the appellants' Mel- _—1931. bourne solicitor, si CrarK, Tarr Fs 5, & Co. Review of Taxation of Costs. v. Clark, Tait and Co. and the Northampton Pastoral Co. Ltd. ae

(hereinafter called "the appellants") had appealed to the High join oP Court against assessments to land tax upon Crown leaseholds in the = —— Northampton Downs group, Bimerah and Barcaldine Downs. In the earlier assessments the taxpayers were Clark, Tait & Co., and in the later assessments were Northampton Pastoral Co. Ltd. The hearing of the case, which was of a lengthy and complicated character, took place in Sydney, and senior and junior Melbourne counsel were engaged by the appellants. The appeal was allowed, and an order for costs was made in the appellants' favour. The District Registrar who taxed the appellants' bill of costs disallowed certain items as hereinafter appears, and the appellants took out a summons to review his decision.

The items to the disallowance of which objection was taken were as follows :—(1) Item 107—Paid L. KE. Watson for typing two copies of evidence in McLeod v. Commissioner of Taxation and postage, £15 Is. 5d. (2) Item 107 — Paid C. M. Pegler, Blackall, Queensland, stock and station agent and valuer, qualifying fees, collection of evidence, travelling expenses and attendance in Sydney for the purpose of giving evidence, £434 15s. 5d. It appeared that C. M. Pegler was a witness whom it was intended to call in support of other witnesses on behalf of the appellants as to the value of the relevant properties. He had fully qualified to give evidence and was present in Sydney during the hearing as a witness but, owing to his ill-health, he was not called. (3) Item 107 —Paid J. H. Cameron, Barcaldine Downs Station, manager, travel- ling and hotel expenses, £82 0s. 7d. It appeared that J. H. Cameron was present in Sydney during the hearing for the purpose of assisting counsel and the instructing solicitor in dissecting the books and records of the station and supplying information regarding its working. He was also available to give evidence to the Court if required regarding these matters. (4) Item 110—Copy documents to accompany brief, consisting of statement as to average cost

I. ©. or A

1931, a)

Crark, Tarr

& Co. v FEpErat Commis- SIONER OF Taxation.

'each for 29th, 30th and 31st July and Ist and 2nd and 5th to

HIGH COURT

per head of live stock 1915-1922 and summary, 148 folios ; la

returns, 58 folios; assessment notices, &c., 678 folios ; dence, 210 folios ; addresses by Mr. Owen Dixon K.C., and evid of C. W. Mitchell and D. Hannah in Jowett's Appeal, 938 foli Land Court determinations, 27 folios; Mr. Mitchell's reports, § and analysis of assessments, 417 folios : making a total of folios—£82 10s. 8d. It appeared that the District disallowed this item to the extent of £44 4s. 8d. and it was ol that in so doing he had not properly exercised his dsr that all the documents were necessary and proper to a brief, Item 113—Brief for second counsel, 3,809 folios, £63 9s. § This item was disallowed to the extent of £22 2s. 4d. (5) I relating to the payment of counsel's fees :—Item 131, 26th Ju paid Mr. Ham K.C. fee and clerk, £43; paid Mr. Martin | and clerk, £32 10s. Items 132, 133, 145, 146, 153, 155, 156, ] and 164 related to similar payments for the dates 27th ; 28th July and 3rd and 4th and 8th to 11th August. Item Ii related to similar fees paid to Mr. Ham K.C. and Mr. Martin f 13th August which were disallowed to the extent of £37 14s, and £29 16s. 9d. respectively. Items 203 and 205 related to fe of £11 and £7 12s. paid to Mr. Ham K.C. and Mr. Martin on continuation of the hearing of the appeals, which amounts V disallowed in full. As to these items it was contended that District Registrar was wrong in deciding that he could not a fees to counsel for days other than those in Court, and that hey wrong in allowing counsel's fees on the scale applicable to Sydne counsel ; alternatively, that the District Registrar did not proj or at all exercise his discretionary powers in regard to fees to counse the amounts allowed being inadequate in the circumstances. 134, 137, 139, 141, 143, 147, 149 and 151 related to five re fees paid to Mr. Ham K.C. of £43 each and to Mr. Martin of £32 If

August 1930. As to these amounts it was contended that District Registrar did not properly exercise his discretion in di ing refresher fees to Mr. Ham K.C. to the extent of £21 5s. per and to Mr, Martin to the extent of £18 7s. per day, the amoutt allowed being, it was alleged, grossly inadequate in the cireumstances

i¢ *:

47 C.L.R.] OF AUSTRALIA.

alternatively, it was contended that the District Registrar had acted apon a wrong principle in limiting refresher fees to such as would

be applicable to Sydney counsel and so disregarding the fact that the counsel engaged were from another State. (6) Items 248-250 were as follows :—248. Journey from Melbourne to Sydney for taxation of costs. Attending taxing. Return journey from Sydney to Melbourne. 249. Paid fares. 250. Paid expenses. As to these items it was objected that the District Registrar had allowed only £21 in respect of item 248 and nothing in respect of items 249 and 250; that he acted upon a wrong principle in deciding that he could not allow the costs of representation from Melbourne on the taxation of costs; that he acted upon a wrong principle in deciding that a fee should not be allowed for attendance of counsel on the taxation, and that he had not properly exercised his discretionary power in that the amount allowed was grossly inadequate in the circumstances. (7) Item not numbered which was as follows :—C. W. Mitchell, Brisbane, Pastoral Inspector for Queensland Trustees—Qualifying fees and out-of-pocket expenses, £225 8s. 4d. Witnesses expenses, £210. Travelling expenses, &c., £23 4s. 8d. Use of room at Hotel Metropole, Sydney, £9. Total, £467 13s. It was contended that the District Registrar had acted upon a wrong principle or, alternatively, had not properly or at all exercised his discretionary power in dis- allowing these fees to the extent of £212 18s. 4d., and that the amount allowed in this item was grossly inadequate in the circumstances. The summons came on for hearing before Rich J.

Ferguson, for the appellants.

De Baun, for the respondent. Cur. adv. vult.

The following written judgment was delivered :—

Ricu J. I have had the advantage not enjoyed by the learned Registrar of hearing a number of land tax cases, and am therefore in a better position to appreciate matters which perhaps have not been brought to the attention of the Registrar: the discretion of the Court is to be exercised upon its own knowledge of the cireum- stances of the particular case (Western Australian Bank v. Royal

'Insurance Co. (1) ). I am at all times loath to interfere with the

(1) (1908) 7 C.L.R. 385, at p. 388. VoL. XLVI. 10

H.C. or A re Cuark, Tarr & Co. FEDERAL Commas- SIONER OF Taxatioy.

Aug. 9.

H.C. or A.

1931. WwW Cuarg, Tarr

& Co.

t Frperau Commas- SIONER OF 'TaNXamion.

Rich J,

HIGH COURT

decisions of experienced taxing officers, but the case under consider tion was exceptional—one of great importance and complexity, ani I think that the learned Registrar has, in some of the items unde review, proceeded on a wrong principle, although the Court may control any decision of a taxing officer (Saddington, Tavation « Costs between Parties, at p. 135). 4

Item 107 (McLeod's Case (1)). For some years the method land valuation under the Land Tax Acts had been under discussio in the Queensland Lands Commission and in a series of cases which came before me. In Jowett v. Federal Commissioner of Tavatio (2) I pointed out that the Commissioner was not employing th right method, and I endeavoured to lay down what was re by the Land Tax Acts. The next cases set down for hearing in Brisbane were McLeod's Case and the case now under rey This case was adjourned to Sydney and McLeod's Case then heard and determined. I found that the Commissioner profited by my suggestions. The cases mentioned were i connected and inter-dependent—concerned with the same subj Whether the land be freehold or leasehold the principle of valuati is the same although the arithmetical calculation—a matter does not come before the Court—is different. When, therefor

Registrar) the Commissioner had employed in McLeod's Caw That being so, I do not consider that it was unnecessary or over cautious on the part of the appellants to incur the expense of le copies of evidence in McLeod's Case. I allow the objection.

(Pegler). The fact that a witness was not examined does

(3); Levetus v. Newton (4); Gregg & Co. v. Gardner (5) ). conducting a case may, seeing the course it is taking, in his disere see fit not to call a witness (compare Clark v. Malpas [No. 2] (6) Pegler was no doubt suffering from influenza but his recovery (1) Unreported. (5) (1897) 2 LR. 122, (2) (1926) 38 O.L.R. 325, (6) (1863) 31 Beav. 554, at p. 558;

(3) (1889) 60 L.'T. 753, 54 ER. 1253, at p. 1255. (4) (1883) 28 Sol. J. 166.

47 C.L.R.] OF AUSTRALIA. 147

probable. The case was of such importance that another expert H- C. oF A.

witness was not over-burdening the case or in the nature of a luxury. ride

I allow the objection. Crarg, Tarr (Cameron). During the hearing of cases of this class the number 5 ee

of sheep carried on the subject land, travelling sheep, agisted [P0EE™

sheep, mortality, weight of clip, prices, costs and a number of other peaparen, "ATION,

details are discussed and the books of the taxpayer are of the = —

greatest importance in determining these matters. Cameron as

_ the manager of part of the subject land and intimately acquainted with its working was essential to the proper and prudent conduct of the case even although he was not called as a witness. I allow the objection.

Items 110, 113 (Documents). I am not disposed to interfere with the Registrar's decision with regard to these items.

Items 131-133, 145, 146, 153, 155, 156, 163, 164. I think the Regis- trar was quite right in disallowing the fees paid for 26th-28th July before the hearing of the case began. They are or should be covered by the fee on the brief. Similarly I disallow refreshers paid for Saturday and Sunday. On the other hand I shall allow the fees paid during the adjournment (except Saturday and Sunday) which I granted after the taking of evidence was concluded. Land tax cases are usually very long and complicated—there is a mass of oral evidence and exhibits—the latter comprising comparative tables of figures prepared by both sides which require careful analysis. I have found during a long experience that addresses are much shortened and more effective if counsel are allowed a breathing space for preparation. I treat it as part of the hearing. This, I think, covers 8th and 9th August. I also think that the Registrar has not sufficiently taken into consideration the complexity of the case and the fact that counsel from another State were engaged in it. I consider, therefore, that the refreshers or increased fees paid to senior counsel should be 35 guineas and those for junior counsel should be on a proper proportion. To sum up, the Registrar was right in disallowing the increased fees and refreshers paid to counsel on 26th, 27th and 28th July and 3rd, 4th, 10th, 11th and 13th August. On the other days such fees and refreshers should be allowed on the scale I have mentioned.

i4s HIGH COURT

H.C.orA. — Ttems 203 and 205. I make no order. eee Items 248-250. I consider this was a proper case for the attendan Crark, Tarr on taxation of the Melbourne solicitor. page The item as to Mitchell's fees and expenses was properly no THDERAL pressed. rchnted I allow the objections specified and cee the matter back to "taxing officer to vary his certificate accordingly. There will be

order as to costs.

Rich J.

Order accordingly. ,

Solicitors for the appellants, Whiting & Byrne. Solicitor for the respondent, W. H. Sharwood, Crown Solicitor the Commonwealth.

H.D.W.

(HIGH COURT OF AUSTRALIA.}

TAYLOR 3 z a s : a 7 5 InFrorManrT, AND THORN: it: "ess Siete ote Bi mae ee DEFENDANT,

H.C. or A. Public Service (Cth.)\—Postal employee—Offence—Wilfully delaying postal a L Omission to deliver—Intention to deliver at later time—Post and Telegi

Ww 1901-1923 (No. 12 of 1901—No. 17 of 1923), sec. 109. een = Sec. 109 of the Post and Telegraph Act 1901-1923 provides that " Any : employed by or under the Department or in the conveyance of mails Gavan Duily negligently loses or who wilfully detains or delays . . . any mail or

Starke, Dixcn, _postal article shall be liable to a penalty not exceeding, twenty-five p watt an

Mei JJ. : poten The respondent, a postman, inadvertently failed to deliver a letter

having discovered his omission, did not return and deliver it, but too