Australian Coal & Shale Employees' Federation v Commonwealth - [1953] HCA 25 - HCA 1953 case summary — Zoe

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Australian Coal & Shale Employees' Federation v Commonwealth

[1953] HCA 25

High Court of Australia|1953-07-01|Before: Kitto J, Dixon J

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Source facts

Court

High Court of Australia

Decision date

1953-07-01

Before

Kitto J, Dixon J

Source

Original judgment source is linked above.

Judgment (18 paragraphs)

[1]

High Court of Australia Kitto J. Australian Coal & Shale Employees' Federation v Commonwealth [1953] HCA 25

[2]

The plaintiffs in this action apply by summons for a review of the taxation of a bill of costs brought in under an order made by Dixon J. on 29th March 1951. The Rules of Court which are applicable are those which were in force prior to 1st January 1953, and it is to them alone that I shall refer.

[3]

The taxation took place on 29th and 30th July 1952. On the latter date, after the taxation had been completed, the taxing officer signed a certificate at the foot of the bill stating that he had taxed the bill and allowed it at the sum of £1,813 6s. 10d. The rules gave to a party dissatisfied with the disallowance of the whole or any part of any items of a bill a right to object to such disallowance and to apply to the taxing officer to review the taxation in respect of the same: O. LIV, r. 53. This right, however, was conferred subject to a time limit: the objection had to be delivered to the other party and carried in before the taxing officer before the signing of the certificate or allocatur or such earlier time as might be fixed by the taxing officer. In this case, the taxing officer signed his certificate on the very day on which he completed the taxation, and no objection had at that time been delivered or carried in. Later on the same day, however, the taxing officer purported to grant an application made to him by the plaintiffs' solicitor by telephone, for an extension of time for fourteen days in which to carry in objections. On 11th August 1952, the plaintiffs' objections were received by the taxing officer, under cover of a letter dated 8th August 1952, in which the plaintiffs' solicitor requested the taxing officer to consider the objections and furnish his decision thereon, with grounds and reasons, within one month. The taxing officer referred, in letters to the parties dated 11th August, to the question of receiving further evidence. He eventually fixed 27th August 1952 for the hearing of the objections, and the plaintiffs' solicitor informed him by letter that he did not desire to adduce any representations other than those made on taxation and those contained in the objections.

[12]

This the taxing officer omitted to do in the present case. The effect of incorporating in the one document his certificate and the grounds and reasons for his decision on the objections was that his fresh disallowances could not be made the subject of objection and application for review. His decision to overrule objections to original disallowances gave rise to a right in the plaintiffs under r. 55 to apply to a justice for an order to review the taxation as to the item or part of an item to which the objections had related. But under the rule, the plaintiffs could not apply for an order for review in respect of a part of any item if the opportunity to object to the disallowance of that part had been inadvertently denied them by the immediate signing of the certificate. As Lord Esher M.R. said in Shrapnel v. Laing [1] : "Upon such an application (i.e. for review) it is necessary that the person who seeks a review should shew that he has taken his objections to the taxation when before the master. The applicant is bound by those objections, and the only question for the Court is whether they are to be sustained or negatived. In all other respects the taxation must be taken to have been right" [1] . See also Bates v. Gordon Hotels Ltd. [2] . The authorities I have cited in reference to the certificate of 30th July 1952 show that in these circumstances there is jurisdiction in the court to set aside the certificate of 23rd October 1952; and I am prepared to make an order to that effect if an application for the purpose is made to me. The effect of making such an order would be that the present application would become incompetent, for the locus standi of the plaintiffs to maintain the application is that they are parties dissatisfied with a certificate of the taxing officer: r. 55. As things stand at the moment (and on the footing that the certificate of 30th July 1952 is out of the way), I can decide the objections now on the file, in so far as they have not already been acceded to by the taxing officer, but I cannot give any binding decision as to the additional disallowances, to which, for want of opportunity, no objections have yet been brought in. As, however, the whole matter has been fully argued before me, I think the course which is most in the interests of the parties is that I should express my views on all outstanding questions, and then adjourn the application to enable the plaintiffs to apply for an order setting aside the certificate of 23rd October 1952, to carry in such objections as they may be advised to the new disallowances, and to apply for a review, if necessary, in respect of those objections in addition to the objections already before me. I should expect, of course, that the parties would endeavour to shorten this procedure as much as possible by agreement.

[14]

Argument was addressed to me on the general topic of the attitude which ought to be adopted, on an application such as the present, to decisions of the taxing officer on questions of quantum. No doubt there are to be found, in some of the cases on the subject, statements to the effect that the discretion of a taxing officer will not be interfered with by a judge unless the taxing officer has erred on a question of principle, and not at all on a mere question of quantum; see, for example, Alsop v. Lord Oxford [1] ; Re Catlin [1] ; In the Estate of Ogilvie [2] ; Coon v. Diamond Tread Co. (1938) Ltd. [3] . So, too, there are to be found in many of the cases decided upon the wider question as to the proper attitude of a court of appeal to any judgment given in exercise of a discretion, statements appearing to limit the function of the appellate court to correcting errors of principle. Yet in that wider area it is clear that such statements are not exhaustive. I shall not repeat the references I made in Lovell v. Lovell [4] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King [5] . So, too, in my opinion, the exercise of the jurisdiction to review a taxation of costs is subject to no narrower limitation than that which was stated by Bovill C.J. and Brett J. in Hill v. Peel [6] : - "A very wide discretion must necessarily be left to the taxing officer, which must be exercised by him after a careful consideration of the particular circumstances of each case; and where, after properly considering the matter, the master has arrived at a decision, it lies upon those who impeach his decision to satisfy the Court that he is wrong. Where a principle is involved, the Court will always entertain the question, and, if necessary, give directions to the master; but, where it is a question of whether the master has exercised his discretion properly, or it is only a question as to the amount to be allowed, the Court is generally unwilling to interfere with the judgment of its officer, whose peculiar province it is to investigate and to judge of such matters, unless there are very strong grounds to shew that the officer is wrong in the judgment which he has formed" [1] .

[16]

I take it to be true that the decision of the taxing officer as to quantum is generally speaking final, and that it must be a very exceptional case in which the Court will even listen to an application to review such a decision: In the Estate of Ogilvie [1] . But the authorities as a whole (not omitting to notice White v. Altrincham U.D.C. [2] ), do not establish as an absolute proposition that a judge will never review a taxing officer's decision on a question of quantum only. Swinfen Eady L.J. said in Slingsby v. Attorney-General [3] , after quoting the passage from Ogilvie's Case [1] to which I have referred: "The decision of the taxing master is not absolutely final, even on a question of quantum "; and so it has been held several times in Victoria, where the view has been accepted for many years that a taxing officer's decision on quantum will be corrected if the judge concludes that "he has clearly made a mistake": In re Melbourne Parking Station Ltd. [4] ; House v. Life Insurance Co. of Australia Ltd. [5] ; Dwyer v. National Trustees Executors & Agency Co. of Australasia Ltd. [No. 3] [6] ; Carrazzo v. Weyman [7] ; McCoughtry v. Schrick [8] ; see also, Russo v. Russo [9] . I respectfully adopt the summary of the law on this matter which was made by Jordan C.J., with the concurrence of Harvey C.J. in Eq. and Street J., in Schweppes' Ltd. v. Archer [10] . His Honour said: - "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. [1] ; Clark, Tait & Co. v. Federal Commissioner of Taxation [1] , 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" [2] .