Stanley v Phillips [1966] HCA 24;

Stanley v Phillips [1966] HCA 24; - HCA 1966 case summary — Zoe

[21]

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)

[31]

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)

[33]

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] HCA 45; (1912) 15 CLR 137 and Smith v. Madden [1946] HCA 19; (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] HCA 19; (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)

[50]

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)

At a glance

Court

Decision date

Before

Source

Judgment (54 paragraphs)

Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470 (27 April 1966)

Parties

Legislation Cited (1)

Cases Cited (4)