Supreme Court of Van Diemen's Land

Pedder C.J., 12 July 1825

An application having been spoken of on Friday last, as intended to be made, that the Master do review his taxation of the plaintiff's Bill of Costs in this cause (which amounted to considerably more than the verdict recovered, £50); but as no proceeding was adopted, this day Mr. Stephen applied to the Court, that the Master might review his taxation on the part of himself (Mr. S.) in order to encrease the same.

The Chief Justice. - Was you in a situation to make the charges you now wish to your bill, when you originally made it out.  If so, and having not then done so, can you now, after taxation, make the additions you speak of?

A very unpleasant conversation ensued, which not being of a public nature, we do not think it necessary to report.  We understood however that Mr. Stephen's motion was refused.

Pedder C.J., 3 October 1825

Mr. Crowther made an application to the Court, as to Mr. Stephen's Bill of Costs, upon an affidavit, the principal nature of which was that Mr. Stephen had charged in his Bill certain sums of money, as having been paid by him as fees of Court to the Registrar, when in point of fact he had not only not paid those fees, but none such existed.  Mr. Crowther stated that he had received a Letter from Mr. Stephen, returning him the money, but that he had refused to receive it, and sent back Mr. Stephen's Letter.

The Chief Justice asked whether the specific sums objected to were specially mentioned in Mr. Crowther's affidavit.  He also considered that Mr. Crowther was out of time.  The Judgment had finally passed, and the present motion was to set aside or interfere with, what was now finally upon record.

The Solicitor-General also urged the same argument, but he offered to wave that objection.  He stated the fact to be, that this was the first Bill of Costs he had ever made out in his life.  It turns out that a mistake has been made as to certain fees of office, and I am ready to return the amount.  A motion was made to review the taxation, but Mr. Dawes, Mr. Crowther's Solicitor, expressly refused to sanction it with his authority, and of course Mr. Crowther is bound by the act of his Solicitor.  Mr. Dawes expressly withdrew all opposition to the Bill of Costs: he said, he would not sanction the motion for the review, because he said he considered it an unobjectionable Bill.  I conceive that the express consent of Mr. Dawes binds Mr. Crowther, and therefore that this motion can not be entertained.  In regard to the fees overcharged, there are others which I paid which are not charged, and which balances the account within a few shillings.

Mr Hone – When the Bill was taxed by me, Mr Dawes was present, as Mr. Crowther's Attorney.  I have not the smallest objection to go over it again, and if any errors appear to set them right.

The Chief Justice – But what then becomes of the Judgment.  It will then be virtually set aside.  I think this application is too late in point of time.  I do think there are some charges which ought to be reviewed; the first item for instance, and others of the same description, retainer and instructions to himself.  But as to the fees charged in the double capacity of Attorney and Barrister, I apprehend Mr Stephen can charge them in his own case, precisely as if he was employed for any body else.

Mr Crowther – But my objection is, that he charges as Attorney and Counsel on the same day.  I conceive that if he acted as Attorney, he could not charge as both Attorney and Counsel on the same day – that he could only attend Court in one capacity, if as Attorney, that his other situation would merge into it.

Mr. Hone. - I admitted the same principle in another case, where Messrs. Cartwright and Ross were concerned.  After much discussion, we understood it was finally arranged, that the Bill should be reconsidered by Mr. Hone, as a matter of private adjustment.

Pedder C.J., 3 October 1825

Source: Hobart Town Gazette, 15 October 1825

In this case, an affidavit of Mr. Crowther was read, stating that there were overcharges in the bill of costs in this action, and that Mr. Stephen had made certain charges for himself, as Counsel and Attorney, which were improper.  Mr. Crowther said it was fair to state, that he had received a letter from Mr. Stephen a few days ago, pointing out to him errors in the bill to the extent of about £2, the amount of which Mr. Stephen had enclosed, but that he (Mr. C.) had thought proper to refuse accepting it.  He thought the bill ought to be taxed over again - he had suffered injustice.

The Chief Justice objected that the affidavit did not specify the particular items, nor state that they were objected to before the Master.  But especially he objected to the length of time which had elapsed.  Was a bill of costs between party and party, and regularly taxed and paid, to be revived at any period?  The money appeared to have been paid months ago.

Mr. Stephen entreated that no difficulty of this kind might be opposed to the defendant; and that he himself might be allowed to supply, in the defendant's favour, any omissions as to the statement of facts in the affidavit, or as to its form; and that the bill might be referred, as prayed.  As this period, above all others, it was of importance to him that the subject should be fairly understood and disposed of.  The facts are these, said Mr. Stephen: -- I obtained a verdict against the defendant early in April last; I know nothing of making out bills of costs, but a friend drew one for me from a precedent of costs taxed at Sydney, which His Honor has kindly lent me.  This precedent I now hold in my hand, and there is not one fee charged in my bill, as paid to the Registrar or otherwise, which is not to be found there retained on taxation.  The defendant's solicitor attended the taxation of my bill before the Master; and, as in duty bound, opposed every part which I presume he thought could be objected to.  After the taxation, however, he admitted that, considering all circumstances, it was unexceptionable; and a remark was made, that had the bill been drawn out in a scientific manner, it would have amounted to more.  This he (Mr. Crowther's solicitor) subsequently repeated in open Court, some months ago, upon occasion of the motion to refer this bill, and he added that the motion was made without his concurrence.  The Court, and the Master, will, I am sure, recollect both these circumstances.  The motion, consequently, then dropped.  Upon recently, however, looking through the bill, and examining my account at the Registrar's office, I found errors in the charges of fees, to the extent of £1 18s. 6d. which I immediately sent to Mr. Crowther.  On the other hand, there are omissions of other fees, paid to the amount of £1 16s. or 17s. so that the total of these oversights, if balanced, amount only to eighteen pence.  If there be, however, other items, of any kind, which the Master may on re-consideration deem irregular, I shall be ready to return the amount, and I am desirous, therefore, that although at this late period, an opportunity for re-taxation should be afforded, if the Court will consent to it.  The Chief Justice, however, on the ground of the case furnishing a precedent, for similar applications, rejected the motion, but the Master, with Mr. Stephen's concurrence, stated his readiness to revise the bill, as a matter of private arrangement.