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Decisions of the Superior Courts of New South Wales, 1788-1899

Hall v Hely [1831] NSWSupC 26; sub nom. Hall v. Hely (No. 3) (1831) NSW Sel Cas (Dowling) 857

taxing of costs - Darling, Governor, attitude to Crown law officers

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 15 January, 19 March 1831[1 ]

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 42] After the lapse of three terms when the costs of a cause have been taxed by the Master and paid with abundant opportunity afforded the Defendant to contest the taxation the Court cannot on a suggestion that the bill of costs ought still be reduced, refer the costs again for taxation.


Source: Dowling, Proceedings of the Supreme Court, Vol. 51, Archives Office of New South Wales, 2/3234[2 ]

[p. 80]  This was an application to the Court to have the Plaintiffs costs of suit in this cause referred to the Master for re-taxation on a general suggestion, without specifying particulars that there were many items in the bill overcharged, and others that ought not to be [p. 81] allowed at all.  The case stood over for the consideration of the Court, whether after the lapse of so much time intervening since the cause was tried, and the costs taxed, the Court had authority to direct the taxation to be suspended.  The illness of some of the members of the Court since this matter was argued, has prevented all the Judges from meeting to consider and determine before now, the point submitted to our consideration.  We are now however prepared to give judgment.

This was an action of trespass in which the plf recovered a verdict for 25£ together with the usual costs of suit.  The cause was tried on Wednesday the 17th March 1830.  On the 8th April 1830 the plf's attorney got the bill of costs taxed by the master after three appointments given [p. 82] to the Defts attorney for that purpose.  On the third appointment the defts attorney's clerk did attend, & made some objections to some of the items of the bill which were allowed.  An offer had been made by the plf's attorney to the defts attorney to furnish him with a copy of the bill of costs which was declined, on a/c of the additional expense.  The bill being taxed on the 8th April the defts attorney caused it to be paid, in order to avoid execution being taken out, but there was no protest then entered or objection made as to the averment.  Since then, namely on the 5th January last, (nearly ten months after the bill had been so taxed & paid), the Defts attorney obtained a rule calling on the plf to shew cause why the master should not review his taxation and why upon such review the plf should not refund such costs as the master should find to have been over paid, & why the plf shd not pay the costs of the reference. 

[p. 83] The affidavit in support of the motion, did not specifically point out any objectionable items in the bill, but alleged generally that there were various sums over charged, & that there were others which ought not to have been allowed.  Objection was taken on the part of the plf to the affidavit in this respect, it being incumbent, as was alleged, on the part of the Deft to point out at least some of the items, so as the court might see at once that there were items over charged, or improperly allowed.  We are of opinion that in regularity of practice the affidavit is defective in this respect, but without relying upon that objection, we shall proceed at once to the main point for consideration, whether under the circumstances disclosed upon the affidavits, the court has authority now, after the lapse of three terms, to direct the master to retax the plf's bill of costs.

We have diligently looked for [p. 84] some precedent or authority for such a proceeding, but one can find none to warrant the application now made.  A case or Lord v Doddery was cited in the argument by the defts counsel as an authority in point; but the circumstances of that case were not brought under our notice, & we cannot blindly adopt it as an authority without knowing on what grounds it was decided.  There may have been very peculiar circumstances in that cause, not to be found in this, taking it out of the general rule.  If a case of gross fraud or surprize upon the parties, were brought before the Court, that would of course render it incumbent on the court to prevent a rigid rule of practice from making injury or injustice, but we do not find here that any fraud or surprize is suggested.  The bill of costs appears to have been [p. 85] regularly taxed in the one course of business by the proper officer of the Court appointed for that purpose - after notice to the opposite party, and after their attorney's clerk had attended the taxation.  The master of this court is appointed by the Crown, and for some purposes his office is judicial both in law and equity, especially in the province of taxing bills of costs.  The Court is bound to presume that he is competent to discharge his duty & has performed it in a manner befitting his important situation.  It may, however, have happened in this instance, that from want of sufficient activity, vigilance, or other causes arising with these rules represented the interests of the deft on the occasion in question, the master has been surprized into the allowance of items in the bill not strictly sanctioned by the usuage & practice [p. 86] of the master's office.  The question however is whether we can now, - after the lapse of so many months - when the cause has been out of Court three terms, - after the proper season for taxation has been allowed to go by & after so much laches on the part of the defts attorney, direct the master to review his taxation.  We think we have no authority for directing such a proceeding.  The cause is now out of court & we have no control over the record, or over the parties to it.  No precedent for such a proceeding is to be found, & if we were now to establish one, we fear it would lead to the most dangerous consequences; for if after the lapse of these terms we were to allow a bill of costs between party & party to be reviewed after being over regularly taxed, and paid, we see no [p. 87] reason why we might not be called upon to adopt the like course in other cases, after the lapse of the three or any number of years.  There is a marked distinction between a bill of costs between party & party to a suit, & a bill of costs as between attorney & client.  The latter may be taxed at any time, and there are circumstances of a bill being allowed to be traced may years after it has been paid and settled; but a bill of costs as between party and party to a suit stands on a totally different footing.  A plf is entitled in general where he recovers damages, to full costs of suit.  The costs are part of his judgement, & they are taxed as a matter of course at the time the plf is entitled to enter up judgement for his damages.  There the plf was entitled to enter up judgement for his damages & costs after the lapse of four days in the following term, - the costs being taxed [p. 88] by the master.  The costs being part of the judgement, they could not be severed, & as well might the Deft seeks to set the whole judgement after the lapse of three terms, as to seek now it reduce the costs.  The time is gone by for such a proceeding.  If the deft has slumbered over his rights or has indirectly and incautiously paid in his own wrong, what he was not bound to pay for costs, he has himself to blame.  A full opportunity was given for having this matter determined, or of righting himself within the same term of which judgement was signed.  If there has been any wrong done to the Deft the Court deeply regrets it, but they have no power of setting right, after he has suffered the proper time & [p. 89] season to elapse.  It appears to us therefore that this rule must be discharged.



[1 ] For an account of the argument in this case, see Sydney Gazette, 18 January 1831; and seeSydney Gazette, 3 March 1831.  See also Hayes v. Hely, 1830; Hall v. Rossi, 1830; Hall v. Hely, 1830.

Governor Darling reported the early parts of this case to Murray on 12 April 1830: Historical Records of Australia, Series 1, Vol. 15, p. 418; the cost to the government of its decision to withdraw the convict servants from the proprietors of the Australian and the Monitor was almost £600. On costs in this case, see also Forbes C.J. to Governor Darling, 22 October 1830, Chief Justices' Letter Book, 1824-1835, Archives Office of New South Wales, 4/6651, p. 271; Darling to Forbes and reply, 19 February 1831, Forbes Papers, Mitchell Library, A 1381 (Reel CY 986), pp 96-99; and W.H. Moore to Colonial Secretary, 17 February 1831, Forbes Papers, Mitchell Library, A 746.  In Forbes' letter of 19 February 1831, he told the governor that the question for the judges was whether "they have the power to reopen a bill of costs, as between party and party to a cause, after it has been finally settled, and the cause out of Court."

[2 ] This judgment in Hall v. Hely is also reproduced in Historical Records of Australia, Series 1, Vol. 16, pp 292-294.  Chief Justice Forbes included it as an enclosure to his letter dated 14 May 1831: the letter was presumably to Governor Darling, who, in turn, included it in a despatch to Goderich, dated 27 June 1831.  The extract of Forbes' letter included by Darling was: ``I beg leave to enclose a Copy of the judgment of the Supreme Court, as it was read from the Bench at time of discharging the rule referred to, and the grounds upon which we felt ourselves compelled to decide.  What should have been done was this: the Solicitor General for the defendant Should have attended in person, or instructed his Clerk how to act at the taxation of Costs before the Master, and, if he were dissatisfied with the taxed bill, Should have taken immediate Steps to have it reviewed, or Submitted to the Court.  The Master Should not have allowed the Costs of a previous and distinct proceeding, in no way part of the cause, but Should have Struck them out.  But, after a bill is regularly taxed in presence of the parties, and paid, and judgment finally entered up, and two terms (there were three in these Cases) Suffered to elapse without objection regularly and effectively taken, it would be quite unprecedented and dangerously irregular for the Court to reopen the Cause, or rather to recall it into Court."  (Pages 291-292.)  Governor Darling used this as further evidence of the slackness of Solicitor General Moore (p. 290; and see p. 416, where Goderich replied to Darling that Moore was to be admonished).

On taxing of costs, see also Ex parte Wilson, Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 100, which includes the following summary by Dowling J.: ``The Court will refer to the master the Sheriffs account of the expenses of a sale of property taken in execution to tax improper items of charge."

Published by the Division of Law, Macquarie University