Court of Appeal (Qld)|1996-06-14|Before: Pincus J, McPherson J, Ambrose J

Stubberfield v BCC & Anor [1996] QCA 184 (14 June 1996)

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1. APPEAL ALLOWED ONLY IN RESPECT OF ITEMS 43, 44, 45, 47 AND 53. APPELLANT ALLOWED HIS COSTS OF APPEAL, BUT ONLY TO THE EXTENT OF ONE HALF. APPEAL OTHERWISE DISMISSED.

2. NOTICE OF MOTION (DATED 18 MARCH 1996) UNDER O. 45 R. 1 BE DISMISSED WITH COSTS.

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CATCHWORDS: Taxation of costs - objections - O. 91 r. 117, r. 118, r. 119 - notice of motion under O. 45 - errors in judgment - O. 91 r. 81 - costs not necessary and proper for the attainment of justice - supplemental record unnecessary - vouching of counsel's fees - O. 90 r. 112 - O. 93 r. 17 - failure to object - amend certificate of taxation or allocatur.

Potts v. Westpac Banking Corporation (App. No. 176 of 1992)

KGK Constructions Pty Ltd v. East Coast Earthmoving Pty Ltd [1985] 2 Qd.R. 13

Woods v. Sheriff of Queensland (1895) 6 Q.L.J. 163

Bowden v. Shire of Cranbourne [1933] ArgusLawRp 44; [1933] V.L.R. 255

Australian Coal and Shale Employees' Federation v. Commonwealth [1953] HCA 25; (1953) 94 C.L.R. 621

re Feez Ruthning Bill of Costs [1989] 1 Qd.R. 55

Walton v. Gardiner [1993] HCA 77; (1993) 67 A.L.J.R. 485

Reid v. Howard (1995) 69 A.L.J.R. 863

Mentor's Limited v. Evans [1912] 3 K.B. 174

re Trout Bernays & Co. [1955] St.R.Qd. 398

Janesco v. Beard [1930] A.C. 298

Wilson v. Wilson [1938] St.R.Qd. 1

Snowy Mountains Hydro-Electric Authority v. Ciciv (1964) 81 W.N. Pt. 1 (N.S.W.) 232

Commissioner for Government Train Services v. Vickery [1952] HCA 44; (1952) 85 C.L.R. 635

S G White Pty Ltd v. Findlay (1955) 72 W.N. (N.S.W.) 494

Isaacs v. Hobhouse [1919] 1 K.B. 398

re St. Nazaire Co. (1879) 12 Ch.D. 88

R v. Registrar of Titles, ex parte Watson No. 2 [1953] VicLawRp 68; [1953] V.L.R. 511

General Council of the Bar v. Inland Revenue Commissioners [1907] 1 K.B. 462

Re H; A Solicitor [1962] Qd.R. 1

Supreme Court Rules O. 41, O. 45, O. 90, O. 91, O. 93,

s. 23 Supreme Court Act 1970 (N.S.W.)

Mr G Robinson for the first and second respondents.

Solicitors: The appellant appeared on his own behalf.

Georgeson & Co. for the first and second respondents.

Mr Stubberfield has appealed against an order of de Jersey J, by which his Honour refused with costs an application for review of a taxation of costs.

On 8 October 1992, Judge O'Sullivan, in proceedings in the Planning & Environment Court instituted by the present appellant, made certain declarations and granted an injunction. The appellant appealed to this Court against part of her Honour's order and the respondent Mr Newing cross-appealed. On 7 June 1993 this Court ordered that the appellant's appeal be dismissed and allowed the cross-appeal by varying the judgment of the Planning & Environment Court. The appellant was ordered to pay the costs of the appeal and cross-appeal. An application for special leave to appeal to the High Court, made by the appellant, was refused on 10 May 1994.

The respondent's costs were taxed on 9 August 1993, and the appellant, being dissatisfied with the outcome, delivered objections in writing under O. 91 r. 117 and applied for review. The taxing officer reconsidered and reviewed his taxation under r. 118 and delivered a document headed "Answers to Objections"; that set out that the objections were dismissed and the officer gave reasons for their dismissal. The appellant then applied to a judge (de Jersey J) at Chambers to review the taxation under r. 119 but his Honour refused the application for review - hence this appeal.

When the appeal came on for hearing, the appellant sought an order pursuant to a notice of motion filed on 18 March 1996, under O. 45(1) of the rules of the Supreme Court, that the orders of this Court made on 7 June 1993 be set aside or declared null and void. The appellant argued that this Court had power to set aside its own previous orders (in respect of which, as I have mentioned, an unsuccessful application for special leave to appeal to the High Court has been made) on one of two bases. First, the appellant said that since the appeal was determined he had discerned errors in the reasons for judgment which vitiated the orders made; secondly, the appellant contended that there was or must have been fraud, the existence of which should be inferred from the errors which he said could be found in the reasons for judgment.

As to the first point, it is in my opinion clear that O. 45 r. 1 does not give this Court the power for which the appellant contends, which is in substance a power, if the Court forms the opinion that reasons given for any of its judgments were mistaken, to set aside such judgments. Order 45 r. 1 is as follows:

"When facts arise after the giving of a judgment or making of an order which entitle the person against whom the judgment or order is given or made to be relieved from it, or when facts are discovered after the giving of a judgment or making of an order which, if discovered in time, would have entitled the party against whom the judgment or order is given or made to a judgment or decision in the party's favour, or to a different judgment or order, the party may apply to the Court or a Judge for a stay of execution or other appropriate relief; and the Court or a Judge may grant such relief, and for that purpose may direct such proceedings to be taken, and such questions or issue of fact to be tried or determined, and such inquiries to be made, as may be just."

In support of his contention as to the true effect of O. 45 r. 1, the appellant referred to KGK Constructions Pty Ltd v. East Coast Earthmoving Pty Ltd [1985] 2 Qd.R. 13. That case proves, when examined, to be no authority in favour of the proposition advanced by the appellant; the most pertinent part of the reasons in that case is at p. 20, where there is to be found reference to Woods v. Sheriff of Queensland (1895) 6 Q.L.J. 163 at 165; the opening part of the passage quoted reads as follows:

"The same principle that allows relief to be given against the continued operation of a final judgment obviously extends also to giving relief against the continued operation of an interlocutory order, if after it is made new facts come into existence or are discovered which render enforcement unjust".

As was pointed out in the 1985 case, the inspiration for O. 45 may well have been difficulties referred to in Woods v. Sheriff of Queensland. If so, then it is unlikely that O. 45 was intended to meet any circumstances in which a litigant claimed to have noticed (even, as in the present case, years after the judgment sought to be attacked) errors in the reasons for a judgment of this Court. But whether or not Woods v. Sheriff of Queensland should be treated as relevant to the construction of O. 45 r. 1, on the face of the rule it is clear that it has no such wide, indeed revolutionary, effect as is contended for.

As to the suggestion of fraud, little need be said. The circumstance that the appellant contends that statements of fact in this Court's reasons are erroneous does not raise a case of fraud - apart from any other difficulty the appellant faces in bringing the case with O. 45 r. 1.

The only other point which should be mentioned, with respect to the appellant's notice of motion, is that it includes an application for an adjournment of the proceedings before this Court on the ground that they involve the interpretation of s. 118 of the Constitution; plainly, no such question arises in these proceedings.

The result is that the application made by notice of motion filed on 18 March 1996 must be dismissed with costs.

To return to the questions raised in the appeal, one finds at the outset an argument somewhat similar to that just disposed of. The appellant says that because the reasons given by this Court in 1993 are erroneous in part, the taxing officer should have refused the respondent any costs, on the ground that O. 91 r. 81 prohibits the allowance to the respondent of any costs not "necessary or proper for the attainment of justice". What the appellant's contention involves is that, although the respondent succeeded in the relevant proceedings, the taxing officer should have held that when the respondent incurred costs he did so knowing that the proceedings must fail. This absurd contention does not, perhaps, deserve an answer; but it is enough to say that there is nothing in the rules suggesting that the taxing officer may decide questions arising before him by ignoring the judgment of this Court which includes the order for costs the subject of the taxation, on the ground that in the taxing officer's opinion the reasons given for the judgment contain errors.

In the result, as it appears to me, there are only two contentions made by the appellant which have any substance.

The appellant says that all or part of the costs of a supplementary record prepared by the respondent for use in the appeal which was as I have said decided in 1993 should have been taxed off. This aspect of the matter is but briefly discussed in the reasons given by the primary judge. Mr Robinson, for the respondent, informed us that according to his recollection very little was said before his Honour on the question whether the content of the record prepared by the appellant for use in this Court in 1993 was such as to make it necessary for the respondent to supplement that record.

But it seems clear that the matter was debated before the taxing officer and that it is covered, although perhaps not as precisely as one would wish, in the objections which were delivered under O. 91 r. 117. In those circumstances it appears to me that this Court should deal with the substance of the point, rather than declining to do so because of any inadequacy in the argument about it before the primary judge.

The history of the supplemental record is, in brief, as follows. On 20 January 1993 the senior deputy registrar wrote to the then solicitors for the respondent encouraging them to liaise with the appellant concerning the content of the record book, and on 11 February 1993 the same official wrote to the appellant requiring that the record book be filed by 12 March 1993. On 24 February the respondent's solicitors received from the appellant a list of the material the appellant proposed to have included in the record, and on 26 February the appellant wrote to those solicitors urging them to produce a list of the material they required included, by 1 March. On 9 March the solicitors for the respondent wrote to the appellant giving a list of the material they required included, but according to a letter of 19 March from the senior deputy registrar that was too late and so a supplementary record book was prepared.

It was argued by the appellant, and appears to me to be correct, that the respondent should, under the relevant practice direction (No. 4 of 1992) have served a notice setting out the material he required to be included in the record, substantially earlier than he did. But it is my view that that circumstance does not give the appellant much help. In order that he should succeed on this argument, it is necessary for the Court to hold that the costs associated with the supplemental record were not "necessary or proper for the attainment of justice, or for maintaining or defending the rights of the party" within O. 91 r. 81.

A perusal of this Court's reasons for judgment gives no support, so far as I can see, to the proposition that the supplemental record was necessary; I can find in the reasons no reference to anything in the supplemental record which is not adequately covered by the principal record; that is not conclusive, for it is possible that documents reasonably considered to be necessary were put in, which turned out not to be, in the end, of any importance in the decision of the appeal or cross-appeal.

But it is of assistance to the appellant that, as the reasons of de Jersey J disclose, the necessity for the supplemental record was explained before his Honour on the basis that:

" . . . only the offending duplication needed to be taken into account and . . . insofar as there was apparent other duplication there were extra notations which rescued those relevant documents from that fate".

It appears that, before de Jersey J, no part of the supplemental record was identified as adding anything of consequence to what was in the principal record; nor were any of the supposedly significant notations pointed out. Similarly, in this Court, Mr Robinson refrained from drawing our attention to any specific aspect of the supplemental record as supporting the decision below. None of the specific complaints contained in the appellant's objections to the taxation were addressed in the argument for the respondent. These matters encourage the thought that there was no real justification for insisting on the additional material.

It appears to me that there are 12 pages, of the 56 pages in the supplemental record, which are simply additional copies of material in the main record; these are pp. 4, 8, 9, 11, 15, 19, 51, 52, 53, 54, 55 and 56. Pages 8 and 56 in the supplemental record are the same and each is the same as p. 42 of the main record. It is true that two of the duplicated pages in the supplemental record (p. 9 and 19) seem to have some additional scribble on them, but in no case is it legible. Then the appellant says that much of the material in the supplemental record which does not simply copy of material in the main record is unnecessary because it leads up to, but adds nothing of any consequence to, a final document included in both records; this appears to me to be so. For example, pages 1 - 3 of the supplementary record are internal Brisbane City Council documents leading up to a decision notified by a document at p. 4 which is another copy of a document at p. 38 of the main record. More generally, the impression I have gained from the supplemental record is that there is nothing in it of any consequence for the purposes of the appeal, other than extra copies of material contained in the main record. It certainly does not appear that any attempt has been made to confine the supplementary record to documents which are truly necessary; an outstanding example of this is the affidavit of C G Buckley at pp. 41 - 46, which is simply argumentative and could not possibly have been relevant to the determination of the appeal.

It is my opinion that the appellant has satisfied the onus which lies upon him of demonstrating that his objection with respect to the supplemental record was well taken and that therefore the costs of that record should not have been allowed; the result is that items 43, 44, 45, 47 and 53, all of which relate to the supplemental record, must be disallowed.

The bill of costs taxed asserts that the respondent's solicitors paid counsel's fees on a number of occasions; it is convenient to list those occasions:

The objections in writing under O. 91 r. 117, mentioned above, did not include any mention of two of these items, but specifically objected to allowance of both the $450.00 fees, recorded as having been paid on 21 November 1992 and 2 February 1993. The grounds of objection did not include any suggestion that the fees had not been paid, nor did the taxing officer's answers discuss that subject.

In the reasons of de Jersey J, however, one finds this:

"There is one other matter I should mention. That is, an objection to the grounds of fees to counsel on the basis that Mr Stubberfield had not had access to counsel's vouched fee notes. Order 91 r. 112 provides that no fee to counsel be allowed `unless it is vouched by his signature or payment thereof is proved by affidavit'. Mr Stubberfield has not seen any vouched fee note and said that, had any been produced to the taxing master, he would have seen it. There is no material before me in affidavit form about this. I am not prepared to assume that the taxing master did not properly recognise and follow through the requirements of r. 112.

Mr Stubberfield has drawn my attention to his statement in his affidavit, Exhibit A to that file on 6 June `no vouchers are filed, r. 112'. The point to be made, however, is that it was not necessary that the vouchers be filed . . . "

His Honour rejected the challenge to allowance of counsel's fees, but the same point has been pursued before us, being covered by ground 2.7 of the notice of appeal.

The matter was the subject of some considerable discussion in this Court, which may be summarised by saying that counsel for the respondent said in effect that the practice on taxations is that solicitors attend without vouchers "invariably" and the taxing officer allows their production later - i.e. after the taxation. Counsel said he was instructed that "the procedure which I outlined . . . is what in fact happened on this occasion before the taxing officer".

The Court has caused an inquiry to be made of the taxing officer, from which it appears unlikely that this occurred - i.e. unlikely that the vouchers were seen by the taxing officer after the taxation. However that may be, counsel for the respondent was asked to produce the vouchers to us; we were subsequently told, before the hearing concluded, that no vouchers had been located, but that there was an undated statement from counsel's secretary receipting the payments involved. Counsel said "there is certainly no doubt that relevant fees have been paid". The Court informed counsel that it would still like to see the vouchers.

On 1 April 1996 the respondent's solicitors wrote to the deputy registrar enclosing copies of material including a number of counsel's accounts, but no such vouchers as are mentioned in r. 112. One of the accounts rendered by counsel, that of 1 February 1993, has an unsigned note on it, "Paid. $2,800.00. 26.2.93". It will be noted that r. 112 contemplates, as an alternative to vouching "by his or her signature", proof of payment by affidavit. The material from the solicitors includes an affidavit to the effect that counsel was paid on 18 June 1993 a sum of $450.00; the affidavit is dated 9 August 1993, that being the date of the taxation. It seems likely, although there is no evidence on the point, that the affidavit was produced to the taxing officer discussing the taxation.

The proper inference from this material is that in breach of r. 112, the other fees to counsel were allowed on taxation, although neither vouched by signature nor proved by affidavit. This is puzzling because, if the unsigned note quoted above is correct, all the fees in question had been paid some months earlier, in February 1993.

The note to r. 112 in Ryan Weld & Lee's Supreme Court Practice Queensland is as follows:

"The practice on taxation is to consider the fees claimed by counsel and, where appropriate, to make an allowance subject to proof of payment pursuant to this rule. Such proof must be produced before the allocatur is signed or the certificate of taxation is issued".

Here, it appears that there was no vouching (other than by the affidavit I have mentioned) at the time of taxation or at any relevant time.

The objection based on the absence of vouching was, it appears, first made before de Jersey J., on the review. It does not appear to me that the appellant had any means of knowing whether the fees in question were vouched or not; all he knew was that he had never seen any vouchers and this presumably aroused his suspicions. In the circumstances, although the factual situation has become clear only from the material supplied to us, in my opinion we should give effect to this ground of appeal. Rule 112 is quite clear, insofar as it prohibits the allowance of counsel's fees unless vouched or proved by affidavit. If it matters, the policy underlying the rule is evident and, I think, sound.

Since writing the above I have had the advantage of reading the reasons of McPherson JA; I note that his Honour is of the view that since no objection relating to vouching of counsel's fees was taken under O. 91 r. 117, the appellant can obtain no relief in respect of that. I respectfully disagree.

Of the four fees for counsel mentioned above, two only were the subject of objection, namely the two $450 fees. The grounds of objection to those two did not include that there had been no vouching; but having regard to the practice under r. 112, set out above, an objection on such a ground would have been premature, for vouching may occur at any time before the certificate of taxation - which in this case was signed on 18 January 1994, the objections having been delivered in September 1993. As to the other two fees, allowance of which was prohibited by r. 112, it seems clear that the absence of objection is not necessarily fatal. First, O. 93 r. 17 makes failure to comply with the requirements of the rules an irregularity which "shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein"; I can discern no basis for holding that O. 93 r. 17 is inapplicable to breaches of the requirements of O. 91 r. 117, so as to make any omission from the objection fatal. The respondent could under that rule have applied to set aside proceedings subsequent to the review, insofar as they related to the items in question, but has not done so. Secondly, as to the certificate of taxation, it has been recognised on a number of occasions that the Court has inherent power to set it aside: re Brougham [1926] SAStRp 53; [1926] S.A.S.R. 423, Dowden v. Shire of Cranbourne [1933] ArgusLawRp 44; [1933] V.L.R. 255 at 260, Australian Coal and Shale Employees' Federation v. Commonwealth [1953] HCA 25; (1953) 94 C.L.R. 621 at 625, re Feez Ruthning's Bill of Costs [1989] 1 Qd.R. 55 at 87. Thirdly, this Court has vested in it the wide power given by s. 8 of the Supreme Court of Queensland Act 1991 as to the effect of which I refer to Walton v. Gardiner [1993] HCA 77; (1993) 67 A.L.J.R. 485 and Reid v. Howard (1995) 69 A.L.J.R. 863, dealing with s. 23 of the Supreme Court Act 1970 (N.S.W.). Under s. 8, it appears that the Court may remedy the position by an order relating to the fees in question, rather than by the means of setting the whole certificate of taxation aside.

I would therefore allow the appeal in respect of allowance of counsel's fees, except as to the $450.00 proved. The result is that, in addition to the items relating to the supplemental record (43, 44, 45, 47 and 53) items 17, 21 and 25 amounting to $900.00 should have been taxed off.

I would accordingly allow the appeal with costs, set aside the orders made below and in lieu order that the amount payable by the appellant in respect of party and party costs relating to appeal no. 218 of 1992 be reduced by $946.45. The order relating to the respondent's application to this Court, heard with the appeal, is as set out above: that the application is dismissed with costs. .

I have had the advantage of reading the reasons of Pincus J.A. Except in relation to the taxation item concerning counsel's fees, I agree generally with what his Honour has said in his reasons, but wish on two of the points at issue to add some comments of my own.

The first concerns the scope of O.45, r.1. It enables a party to obtain a stay of execution "or other appropriate relief" in two classes of case. One is where facts arise after the giving of judgment that entitle a party to be relieved from it; the other is when facts are discovered after judgment which, if discovered in time, would have entitled the party against whom the judgment is given to a judgment in his favour, or to a different judgment.

There is a tendency on the part of litigants, especially those who appear in person, to suppose that O.45 permits a further appeal to this Court in a matter in which an earlier appeal has been dismissed: cf Potts v. Westpac Banking Corporation (App. No. 176 of 1992). That is very far from being the case. The present rule 1 is based upon and closely resembles O.41, r.22 of the Rules of Court made in Queensland under the Judicature Act of 1876, which were replaced by the current Rules in 1901. Order 41, r.22 of the old Rules, as they may be called, provided that "No proceeding by audita querela shall hereafter be used but ...". The rule then ran on in a form like that of the present rule O.45, r.1. As appears from the terms of the old rule O.41, r.22, and from what was said about it by Griffith C.J. in Woods v. Sheriff of Queensland (1895) 6 Q.L.J. 163, 164, proceedings by audita querela were abolished by that rule; but said the Chief Justice, under the old rule "similar relief may be obtained after judgment upon the ground of facts which have arisen or have been discovered too late to be pleaded".

The question, then, is what relief was available in proceedings by audita querela. Not much is to be found on the subject in modern works on procedure, and for enlightenment it is necessary to go back to the old texts and judgments. Blackstone says that audita querela was "in the nature of a bill in equity", but one which in the common law courts was ordinarily commenced by writ complaining that the plaintiff was the victim of "oppression" (1 Bl.Com. 405). By plaintiff in this context was meant the plaintiff in the new proceedings commenced by writ, because the essence of the procedure was that the defendant's own claim or complaint as plaintiff in earlier proceedings had already been heard (audita querela defendentis), and that the judgment obtained by that party was now being enforced in a manner that was said to make it oppressive. The procedure was most often resorted to where, after judgment had been obtained against the new plaintiff and he had satisfied or agreed to satisfy it, the new defendant nevertheless proceeded to levy execution against him. See, for example, Williams v. Roberts [1850] EngR 706; (1850) 8 Hare 315; 68 E.R. 381. This is no doubt why, in the old Rules, O.41, r.22 appeared in an Order headed "Execution"; but the old procedure at common law was also available in cases where judgment had been obtained by fraud or surprise. See Lush's Common Law Practice, 2nd ed., at 436 note (a), and the authorities cited there and in Fisher's Common Law Digest, ed. J. Mews 1888, vol. 1, at 504-505.

In those jurisdictions where the old procedure has survived intact, it has been accepted that, generally speaking, an independent action must be instituted to impeach a completed judgment, although the possibility of applying by motion is also recognised. See Jonesco v. Beard [1930] A.C. 298, 301; Wilson v. Wilson [1938] St.R.Qd. 1, 7-8; Snowy Mountains Hydro-Electric Authority v. Cicic (1964) 81 W.N. (Pt. 1) (N.S.W.) 232, 235. In either instance, the jurisdiction is exercised only where the fraud or other ground for relief is distinctly alleged and satisfactorily proved: Commissioner for Government Train Services v. Vickery [1952] HCA 44; (1952) 85 C.L.R. 635, 645; S.G. White Pty. Ltd. v. Findlay (1955) 72 W.N. (N.S.W.) 484.

The reason why, since the Judicature Acts, so little use has been made of the old procedure is that in practice it has now largely been replaced by appeals and orders for new trials. Under either form of procedure the standard of proof or persuasion are the same if the ground relied on is fraud: Wilson v. Wilson [1938] St.R.Qd. 1, 8; Snowy Mountains Hydro-Electric Authority v. Cicic (1964) 81 W.N. (Pt. 1) (N.S.W.) 232, 235. In the context of modern court procedures, there is now much less scope for "surprise", and it may perhaps be doubted how far it survives as a distinct category or ground for relieving against a judgment: Isaacs v. Hobhouse [1919] 1 K.B. 398, 406; Wilson v. Wilson [1938] St.R.Qd. 1, 9-10.

It is apparent that nothing approaching fraud or surprise in the sense discussed is alleged or demonstrated by Mr Stubberfield as appellant in the present case. The judgment is not being enforced against him in a manner that is oppressive. His complaint is simply that, in the reasons for judgment delivered in allowing the appeal in the proceedings before this Court on the last occasion, the Court of Appeal made a mistake of law or, it may be, of fact. That is not a matter capable of being corrected either by the procedure of audita querela abolished by the old rule O.41, r.22, or by the new procedure introduced by O.45, r.1. The new procedure may be wider than the old: cf. K.G.K. Constructions Pty. Ltd. v. East Coast Earth Moving Pty. Ltd. [1985] 2 Qd.R. 13; but it does not extend to having this Court, or any other division of it, rehear an appeal which has already been heard and disposed of by an earlier judgment or order of this Court. So much is plain from the remarks of Sir Samuel Griffith C.J. in Woods v. Sheriff of Queensland (1894) 6 Q.L.J. 163-164. His Honour said there that the former practice of rehearing suits in Chancery was abolished by the Judicature Acts in England: Re St. Nazaire Co. (1879) 12 Ch.D. 88; and that the provisions of the Judicature Act of 1876 were inconsistent with the retention of such a power in Queensland. The learned Chief Justice added that, although the mode of procedure was altered by O.41, r.22 of the old Rules, full power was retained by that rule to relieve a party from the effect of a judgment "which, though just when it was pronounced, ought not to be carried into execution". The case Mr Stubberfield now advances is not of that kind. He wishes simply to relitigate an appeal, in which he was unsuccessful, and from which he has failed to obtain the special leave of the High Court to appeal.

The second matter on which I wish to comment is O.91, r.112, which provides that no fee to counsel is to be allowed on taxation unless it is vouched by his signature, or payment of it is proved by affidavit. The origin of the rule is discussed in R.v . Registrar of Titles, ex parte Watson (No. 2) [1953] VicLawRp 68; [1953] V.L.R. 511, affirmed [1954] VicLawRp 18; [1954] V.L.R. 111. Its meaning and function was considered in General Council of the Bar v Inland Revenue Commissioners [1907] 1 K.B. 462, 472-473, where it was said that the purpose of a solicitor's asking counsel to put his initials or name against the fee marked on brief is to obtain an acknowledgment of payment of the fees for the purpose of proving to the taxing master, or the client, or the court, or perhaps the Law Society, that the fees have been paid. What, asked Bray J., is a voucher but an acknowledgement of payment? His Lordship was, of course, considering a matter in which, it may be inferred, counsel's fee was delivered with the brief; but a separate receipt signed by counsel acknowledging that the fees have been received has, not surprisingly, been held to be a sufficient voucher for the purpose of O.91, r.112: see Re H., A. Solicitor [1962] Qd.R.1, 3. The rule does not distinctly say that it must have been vouched by the time the taxation takes place; but it is difficult to see how it could be vouched after the certificate or allocatur has been signed because it is then that the amount of the costs is quantified or ascertained: Re Crump (1891) 64 L.T. 799; Re Cartwright [1975] 1 W.L.R. 573, 577.

In the present case, we have seen a voucher or receipt for $450, being part of counsel's fees in the matter. As to the balance, the problem confronting the appellant in relation to this item or items is that in respect of it he did not follow the procedure laid down by the Rules. Order 91, r.117 requires a party, who is, as in this case, dissatisfied with the allowance by the taxing officer of the whole or part of an item in a bill of costs, to make a written objection to such allowance. Under the rule, that is done by delivering the written objection to the other interested party and leaving it with the taxing officer, which must be done before the certificate or allocatur is signed. Having done so, the dissatisfied party may then apply to the taxing officer to review the taxation "in respect of the same", which plainly means the objection in respect of which the requirements of O.91, r.117 have been satisfied.

Once that procedure has been carried out, the taxing officer is required by O.91, r.118 to reconsider and review his taxation "upon such objections". The taxing officer may in respect of those objections receive further evidence; but, except to that extent, is not at liberty to review the taxation or amend the certificate or allocatur once it (or any further such certificate signed under O.91, r.117) has been signed. Under O.91, r.118, it is only when that has been done, or within 14 days of the date of the certificate, that a party may apply to a Judge for an order to review the taxation "as to any item ... which has been objected to as aforesaid". On such an application the judge has a discretion as to making an order; but O.91, r.119 concludes with the words:

"the certificate or allocatur of the taxing officer shall be final and conclusive as to all matters which shall not have been objected to as aforesaid."

It is settled law in Queensland, applying authorities in other jurisdictions, that unless written objection to a particular item, or part of an item, has been made in the manner prescribed by O.91, r.117, an objection to it may not be relied on or raised before a judge on an application for review under O.91, r.119. See on this, Re Trout Bernays & Co. [1955] St.R.Qd. 398; Re H., A Solicitor (No. 2) [1962] Qd.R. 1, 3; Re Feez Ruthning's Bill of Costs [1989] 1 Qd.R. 55. Indeed the final sentence of r.119 makes it clear that the court is given no power to review the taxation as regards matters not objected to in the prescribed manner. As to those matters, the certificate is final and conclusive.

In the present case, the absence of vouching of counsel's fees was first made the subject of complaint before de Jersey J. on the hearing of the review. His Honour declined to allow that matter to be pursued. The item had not been objected to in writing before the taxing officer in accordance with O.91, r.117. Had it been done at the proper time and place, it may be that the taxing officer would have adjourned the taxation, or at least refrained from signing a certificate and under O.91, r.119 allowed further evidence in respect of it. That course not having been followed, it seems to me with respect that the respondent was deprived of the opportunity which the Rules allow of proving payment of counsel's fees in accordance with O.91, r.112. It is true that before us an opportunity was afforded of doing so; but that is not necessarily the same thing. In any event, as Fletcher Moulton L.J. said in Mentor's Limited v. Evans [1912] 3 K.B. 174, 178, it is "a fundamental principle" in dealing with an appeal arising from a taxation of costs that the appellant is strictly tied to the objections made by him to and answered by the taxiing master. "Such a provision", he added, "saves endless expense". I have no doubt it does.

Accordingly, as to the item or items sought to be placed in issue involving counsel's fees, I would dismiss the appeal. As to the supplemental record, I agree with what is said by Pincus J.A. in his reasons. In this instance, the objection was made in writing before the taxing officer. The appeal should, as regards items 43, 44, 45, 47 and 53, be allowed. I would allow the appellant, who has been partly successful on the appeal, his costs of appeal, but only to the extent of one half. Otherwise the appeal should be dismissed. The notice of motion dated 18 March 1996 under O.45, r.1 should be dismissed with costs.

In this matter I have had the opportunity of reading the draft reasons for judgment of Pincus JA and McPherson JA and am content to accept the outline of relevant facts contained in them.

I agree with the conclusions each has reached with respect to the allowance of costs on the supplemental record.

With respect to the question of allowance of counsel fees, I agree with the approach of McPherson JA and with the conclusion which he has reached on this point. I agree that for the reasons given by Fletcher Moulton LJ in Mentor's Limited v. Evans [1912] 3 KB 174, 178 upon a review of a taxation of costs under O.91 rr.118, 119, the appellant is confined to the objections formally made and lodged with the taxing officer.

A party dissatisfied with the allowance of any item of costs by a taxing officer upon taxation of a bill of costs must object to that very allowance stating the grounds and reasons for the objection under O.91 r.117.

The object of this rule is to give the taxing officer an opportunity to reconsider his allowance in the light of the grounds and reasons stated in the objection and if he so desires to permit further material to be placed before him relevant to the determination of the objection.

The scheme of the rules providing for an appeal to a judge by way of review of the determination of an objection by a taxing officer is to limit the review to the determination only in respect of the allowance of the item of costs specifically objected to which the taxing officer has been required to reconsider upon objection.

The procedure under O.91 has the following objects -

(i) to allow the taxing officer to reconsider his allowance or disallowance of the item of costs the subject of the objection;

(ii) to enable the taxing officer to permit or require further material to be placed before him relevant to that allowance or disallowance;

(iii) to have the taxing officer with the advantage of any extra material put before him and any further argument addressed on the hearing of the objection to make a determination which will either confirm the one objected to or amount to a fresh determination; and

(iv) to have the taxing officer state clearly and explicitly the basis upon which he makes his determination upon the objection.

Upon the making of the determination upon the objection, it is the item objected to and no other which may be taken on review to a judge under O.91 r.119.

There is a sound reason for this procedure which is echoed in the words of Fletcher Moulton LJ in Mentor's Limited v. Evans to which McPherson JA has referred.

It is sometimes said that hard cases make bad law. The only basis upon which the present case could be categorised as a "hard" one, is that the appellant, without formal legal training, undertook to conduct personally, not merely the proceedings in the Local Government Court, but also his case upon the taxation of the bill of costs by the successful respondent in those proceedings. He has argued his own appeal before this Court. His case could only be said to be hard because of his obvious lack of legal training and familiarity with RSC O.91 rr.117, 118 and 119.

(i) that payment of counsel's fees in issue upon the appeal was not properly proved either by "vouching"or by affidavit upon taxation;

(ii) that the failure to so vouch or prove payment was apparent to the respondent who attended upon taxation at that time; at least it would have been apparent if he had known of or had in mind the provisions of RSC O.91 r.112. He made no complaint of this failure upon the taxation;

(iii) that when objecting to the various matters arising upon the taxation officer's determination prior to the signing of the allocatur, the appellant did not specifically object to failure to prove payment of counsel's fees. Having regard to the various objections that were taken, I would infer that he simply did not at that stage advert to the fact that such an objection was open to him.

I agree with the observations of McPherson JA that had the objection been taken it would have been quite open to the taxing officer to require the fees to be vouched or otherwise proved upon pain of their disallowance.

In my view, the chamber judge before whom the review was brought was quite correct in declining to permit the appellant to embark upon examination of a matter relevant to the taxation of the bill of costs to which no objection had been formally taken pursuant to O.91 r.117. His refusal to permit such a course was in accord with established practice referred to in Re Feez Ruthning's Bill of Costs [1989] 1 Qd R 55 and the other authorities to which McPherson JA refers.

In my view, for the reasons expounded by Fletcher Moulton LJ in Mentor's Limited v. Evans (supra), it would be most undesirable to permit matters of complaint of the present kind to be raised for the first time upon the hearing of a review pursuant to RSC O.91 r.119.

Reference to the matter of allowance of counsel's fees sought to be ventilated upon review show that this matter was first raised in an affidavit filed on 6 June 1995 (nearly two years after formal objection to the allowance of other items of cost had been made). Moreover, the objection then raised for the first time was that no vouchers had been filed pursuant to O.91 r.112. As the Chamber Judge held, even the matter so raised at that late stage was based upon a misreading of that rule. The matter actually argued in this Court was first raised upon appeal.

The review procedure established under O.91 is just that - a procedure to review the allowance or disallowance of a specific item of costs by a taxing officer after a properly taken objection to that allowance or disallowance has been considered by the taxing officer who has given reasons supporting his determination.

What the appellant seeks to do before this Court is to appeal against the allowance by the taxing officer of items of cost where that allowance has never been objected to under O.91 r.117. Had the allowance been objected to on the grounds first raised upon review the taxing officer may have either disallowed those items or procured further material to prove payment.

Had the point been taken upon taxation it would have been open to the solicitors for the respondent to have taken steps to prove payment. Had they not done so properly and had objection been taken they would have had another opportunity to do so before the allocatur was signed.

In my view as undesirable as it would be if persons dissatisfied with the outcome of a taxation of a bill of costs could raise for the first time upon "review proceedings" under O.91 r.119 matters never previously raised for consideration by either the taxing officer or the other party or parties to the taxation, it would be even more undesirable if such matters were allowed to be pursued upon appeal to this Court from such review proceedings upon the contention that the judge conducting the review ought to have departed from the explicit constraints imposed upon him under O.91 r.119 - even assuming he had a discretion to do so in "exceptional" cases; (Re Feez Ruthning's Bill of Costs [1989] 1 Qd R 55 at p.87 per Macrossan J (and c.f. O.91 r.120). This appeal was not brought or conducted on the basis that the judge conducting the review had erred to such an extent in the exercise of any discretion he may have had to disregard the constraints of O.91 r.119 that his order refusing permission to embark upon consideration of the matters ventilated in this Court concerning payment of counsel fees ought be reversed -House v. the King (1936) 55 CLR 449 at 504-5.

I am unpersuaded upon the material placed before us that the learned chamber judge did err in refusing to embark upon a consideration of whether payment of counsel fees had been proved as required by RSC O.91 r.112 before the taxing officer when that point was not a matter of objection formally taken against the taxing officer's allowance of those items of cost.

In my view upon a proper construction of O.91 the failure to make an objection to an item of costs allowed or disallowed upon taxation under O.91 r.117 ought at least in the absence of quite exceptional circumstances prevent such a matter from being ventilated for the first time upon review; on the facts of this case no exceptional circumstances have been advanced.

Upon an appeal to this Court from the decision of a judge reviewing a taxation under O.91 r.119 an appellant will not be permitted to raise for the first time matters that should have been argued before the taxing officer. Where matters have never been raised before the taxing officer and therefore never considered by a judge reviewing his allowance under O.91 r.119, this Court will be loath of its own motion to make inquiries thought relevant to determine what were or might have been the processes adopted by the taxation officer upon taxing an item of costs in issue.

Stubberfield v BCC & Anor [1996] QCA 184

At a glance

Court

Decision date

Before

Source

Judgment (120 paragraphs)

Stubberfield v BCC & Anor [1996] QCA 184 (14 June 1996)

Parties

Cases Cited (1)