280

THE COSTS ACT of 1867

31 Vic. No. 20

Amended by Criminal Code Act, 1899, 63 Vic. No.9 Acts Shortening Act Amendment Act of 1903, 3 Edw. 7 No. 10 Statute Law Revision Act of 1908,8 Edw. 7 No. 18

An Act to Consolidate and Amend the Laws relating to Costs at Common Law and to Taxation in General

[Assented to 28 December 1867]

Acts Shortening Act Amendment Act of 1903: See now Acts Citation Act of 1903, title ACTS OF PARLIAMENT, Vol. 1, p. 76.

References to "Pring's Statutes" and to Colonial Acts were omitted from the sectional notes throughout this Act by the Acts Citation Act of 1903, s. 10, title ACTS OF PARLIAMENT, Vol. 1, p. 76.

Preamble repealed by the Statute Law Revision Act of 1908, s. 2. title ACTS OF PARLIAMENT, Vol. 1, p. 108.

COSTS AGAINST EXECUTORS

1. Executors suing in right of the testator to pay costs. 3 & 4 Wm. 4, c. 42 s. 31. In all actions hereafter brought by executors or administrators in right of their testator or intestate such executors or administrators (unless the court or a judge shall otherwise order) shall be liable to pay costs to the defendant in case of being nonsuited or a verdict passing against them and in all other cases in which they would be liable to costs if suing upon a cause of action accruing to themselves in their own right and the defendant shall have judgment for such costs accordingly.

Act referred to: Civil Procedure Act, 1833, 3 & 4 Wm. 4, s. 42, has been repealed.

See 16 Halsbury's Laws of England, 3rd ed. p. 479.

2-20. (Repealed.) Repealed by Statute Law Revision Act of 1908, s. 2, title ACTS OF

PARLIAMENT, Vol. I, p. 108.

21. (Repealed.) Repealed by Criminal Code Act, 1899, s. 3, title CRIMINAL LAW. See

now the Criminal Code, ss. 133, 134.

A TTORNEY'S BILLS OF COSTS

22. Bills to be delivered. 6 & 7 Vic. c. 73 s. 37. No attorney nor any executor administrator or assignee of any attorney or the trustee of his estate shall commence or maintain any action or suit for the recovery of any fees charges or disbursements for any business done by such attorney until the expiration of one month after such attorney or executor administrator or assignee of such attorney shall have delivered unto the party to be charged therewith or sent by the post to or left for him at his counting-house office of business dwelling-house or last known place of abode a bill of such fees charges and disbursements and which bill shall be subscribed by such attorney in his proper handwriting

COSTS ACT OF 1867 ss.1·22 281

(or in the case of partnership by any of the partners either with his own name or with the name and style of such partnership) or by the executor administrator or assignee of such attorney or the trustee of his estate.

Act referred to: Solicitors Act, 1843, 6 & 7 Vic. c. 73 (Imperial), has been repealed.

An order may be made for delivery of a bill. See ss. 26, 29. With respect to cases where an agreement in writing with respect to costs ha~

been made. see the Solicitors Act, 1891, Part I, particularly ss. 3, 15 thereof, p. 293, post.

Any action-No delivery of a bill is necessary to enable a solicitor to set off his costs in an action brought against him by the client, Harrison v. Turner (1847), 10 Q.B. 482; Ex parte Cooper (1854), 14 C.B., 663; Brown v. Tibbits (1862), 11 C.B.N.S. 855; but see contra, Davies v. Worthington (1902), 4 W.A.L.R. 130; nor to prove for them in the client's bankruptcy, Eicke v. Nokes (1829), Mood. & M. 303: nor to bring an action for them upon a promissory note given for them, Je/Jre)'.~ v. Evans (1845), 14 M. & W. 210.

Fees charges or disbursements-The fees or charges referred to are for work done in a professional capacity, Bush v. Martill (1863), 2 H. & C. 311. There is a distinction between professional and non-professional disbursements; the former mmt be included in the bill, the latter in a cash account. Professional disburse­ments are such as a solicitor may make in the due discharge of his duty which he has undertaken as a solicitor. and include counsel's fee, Re Metcalfe (1862), 30 Beav. 406; Re Remnant (1849), 11 Beav. 603; Re Federal Deposit Bank Ltd., [1937] Q.W.N. 38; court fees, Re Remmant, supra; Re Grant, Buicraig, & Co., [1906J 1 Ch. 124; or other disbursements sanctioned by the usages of the profession, Rc Remnant, supra. Non-professional disbursements are payments which the solicitor is not bound to make in the performance of his professional duties, and include purchase-money and interest thereon, Re Remnant, supra, and payments of estate and other death duties, Re Haigh (1849), 12 Beav, 307; Re Kingdom ((lid Jt'ilsoll, [1902] 2 Ch. 242.

Expiration of one month-The term "month" in this section means calendar month, Acts Interpretation Acts, 1954 to 1962, s. 36, title ACTS OF PARLIA­MENT, Vol. I, p. 97, and is reckoned exclusively of the days on which the bill is delivered and the action brought, Blunt v. Heslop (1838), 8 Ad. & EI. 577. Cf. Acts Interpretation Acts, 1954 to 1962, s. 38, Vol. 1, p. 99.

Delivered unto the party to be charged therewith or sent by the po~t-It is not a sufficient delivery of a bill for the solicitor to show it to the party charged and then take it away again, unless the solicitor showing it intended to leave it with the party charged and merely takes it back at his request, Ex parte Executors of Rohson (1885), 7 A.L.T. 84; Phipps v. D.aubney (1851), 16 Q.B. 514; and see Re Robertson (1889), 42 Ch. D. 553.

Delivery to the party to be charged generally means delivery to the client, Re Abbott (1861), 4 L.T. 576. It is not sufficient to deliver to a relative of the client. Gridley v. Austen, Daubney v. Phipps (1849), 16 Q.B. 504. It is sufficient to deliver to a servant at the client's residence, MacGrcRor v. Keily (1849), 3 Exch. 794. or to a specially appointed agent, Re Bush (1844), 8 Beav. 66; Re Kellock ( 1887), 56 L.T. 887. Where several are jointly li~ble, delivery of a bill to one of them is sufficient, Crowder v. Shee (1808), 1 Camp. 437; Finchett v. How (1809).2 Camp. 275; Oxenham v. Lemon (1823),2 Dow. & Ry. K.B. 461; Phipps v. Dallhney (1851), 16 Q.B. 514; Mant v. Smith (1859),4 H. & N. 324.

As to proof of posting, see Skilbeck v. Garbett (1845), 7 Q.B. 846. A bill is not sent by post olle month before action unless it is posted at such

time that it WOUld, in the ordinary course of post, be delivered to the party to be charged one clear calendar month before the commencement of the action, Browne v. Black, [1912] 1 K.B. 316; [1911-13] All E.R. Rep. 737. Cf. Acts Interpretation Acts. i 954 to 1962, s. 39, title ACTS OF PARLIAMENT, Vol. 1, p. 100.

The bill must give the client such reasonable information as will enable him to take advice as to its taxation; it need not be so explicit on the face of it as to enable a solicitor at once to say, without further inquiry, whether the charges are proper. Haigh v. Ousey (1857), 7 E. & B. 578; Waller v. Lacy (1840), 8 Dow!. 563. No particular form of heading is necessary, Champ v. Stokes (1861), 6 H. & N. 683. The bill must indicate the party to be charged with it, Mant v. Smith (1859), 4 H. & N. 324; but it is sufficient if this appears from a document

282 COSTS Vol. 4

accompanying it, Taylor v. Hodgson (1845), 3 Dow. & L. 115; Champ v. Stokes, supra; or from the envelope enclosing it, Roberts v. Lucas (1855), 11 Exch. 4l. The items must be specified and charged separately, not included in one lump sum, Re Smith (1841), 4 Beav. 309; Philby v. Hazle (1860), 8 C.B.N.S. 647; Wilkinson v. Smart (1875), 33 L.T. 573. See also Re H. (1928), 45 W.N. (N.S.W.) 160.

The solicitor is bound, for taxation purposes, by the bill as delivered, Loveridge v. Botham (1797), 1 Bos. & P. 49; Re Carven (1845), 8 Beav. 436; Davis v. Dysart (1856), 8 De G.M. & G. 33; Re lones, Ex parte King (1886), 54 L.T. 648; and is not entitled without leave to amend it, either by increasing, Re Wells (1845), 8 Beav. 416; Re Walters (1845), 9 Beav. 299, or decreasing the amount, Re Heather (1870), 5 Ch. App. 694; Re Holroyde and Smith (1881), 43 L.T. 722; Lumsden v. Shipcote Land Co., [1906] 2 K.B. 433; Wilson v. Bedford, [1936] Q.W.N. 30. See R.S.C. (1900), Order 91, rule 48, title SUPREME COURT. Leave to amend will be granted only in special circumstances, as where the solicitor has informed the client that the bill contains items not allowable on taxation, Re Thompson (1885), 30 Ch. D. 441, or where there has been a bona fide mistake, Re Walters (1845), 9 Beav. 299; Marshall v. Oxford (1832), 5 Sim. 456; Re Holroyde alld Smith (1881), 43 L.T. 722; Re Negus, [1895] 1 Ch. 73.

Compare the English practice as declared in Re Taxation of Costs, Re Solicitors, [1942] 2 All E.R. 499 (bill for lump sum; detailed bill demanded by client and taxed at sum greater than lump sum), approved in Polak v. Marchioness of Winchester, [1956] 2 All E.R. 660.

See also the 42 English and Empire Digest, 134.

23. Evidence of delivery of bill. 6 & 7 Vic. c. 73 s. 37. It shall not in any case be necessary in the first instance for such attorney or the executor administrator or assignee of such attorney or trustee of his estate in proving a compliance with this Act to prove the contents of the bill he may have delivered sent or left but it shall be sufficient to prove that a bill of fees charges or disbursements subscribed in the manner aforesaid was delivered sent or left in manner aforesaid

but nevertheless it shall be competent for the other party to show that the bill so delivered sent or left was not such a bill as constituted a bona fide compliance with this Act

Where party leaving colony. Provided always that it shall be lawful for any judge of the Supreme Court to authorize an attorney to commence an action or suit for the recovery of his fees charges or disbursements against the party chargeable therewith although one month shall not have expired from the delivery of a bill as aforesaid on proof to the satisfaction of the said judge that there is probable cause for believing that such party is about to quit the colony.

Act referred to: Solicitors Act, 1843, 6 & 7 Vic. s. 73 (Imperial) has been repealed.

TAXATION OF COSTS

24. Taxation of bills within a month. 6 & 7 Vic. c. 73 s. 37. Upon the application of the party chargeable by such bill within such month an appointment for taxation of the same may be obtained as of course and without order of a judge

from the master in equity in case the whole of the business contained in such bill shall have been transacted in the Supreme Court in its equitable jurisdiction or in any matter of lunacy or shall relate to conveyancing business

from the judge in insolvency in case of the whole of such business contained in such bill shall have been transacted in the Supreme Court in its insolvency jurisdiction and

COSTS ACT OF 1867 ss.22-25 283

from the prothonotary of the Supreme Court in every other case including criminal business and though the business or part of the business contained in such bill shall not have been transacted in the Supreme Court

and thereupon such bill and the demand of such attorney executor administrator trustee or assignee shall be taxed and settled by such officer without any money being brought into court

and the Supreme Court or a judge thereof shall restrain such attorney or executor administrator or assignee of such attorney or the trustee of his estate from commencing any action or suit touching such demand pending such taxation and the costs of such taxation shall as hereinafter provided be paid according to the event of such taxation.

Act referred to: Solicitors Act, 1843, 6 & 7 Vic. c. 73 (Imperial) has been repealed.

The word "of" where firstly occurring in the ninth line of this section appears to he an error of inadvertence in drafting.

Applications for taxation are governed by s. 29. As to applications for taxation by persons not chargeable with the bill, see s. 30.

With respect to taxation, where an agreement in writing has been made between solicitor and client, see the Solicitors Act, 1891, s. 15, p. 298, post. As to allowance of interest. see ibid., s. 17.

Generally with respect to taxation of costs, see R.S.C. (1900), Order 91, title SUPREME COURT. See particularly rules 82-82B, 34.

With respect to taxation of costs between parties in criminal matters, see the Criminal Code, s. 662. title CRIMINAL LAW.

Where a solicitor has charged a lump sum he can not afterwards, on taxation bcing applied for, carry in a detailed bill of costs, except to support the reason­ableness of the amount originally charged. unless by mistake items have been omitted. Re McGrath (1911), 12 N.Z.O.L.R. 766.

A taxing officer has power to disallow the items of a bill of costs rendered against a husband by a wife's solicitor, on the ground that such costs are not in the nature of necessaries. Ex parte Fealy (1919), 19 S.R. (N.S.W.) 359; 26 C.L.R. 407.

Shall restrain ... from commencing any action-The order restraining a solicitor from commencing any action must be personally served, Re Cunningham (1886), 55 L.T. 766. The remedy for disobedience to the order is by attachment, DCIlI v. Basham (1854), 9 Ex. 469.

Sec also the 42 English and Empire Digest, 159; R. v. Towner (1897), 7 Q.L.J. 139.

25. Taxation after one month. 6 & 7 Vic. 73 s. 37. In case no such application as aforesaid shall be made within such month as aforesaid then it shall be lawful for the Supreme Court or a judge thereof either upon the application of the attorney or the executor administrator or assignee of the attorney or the trustee of his estate whose bill may have been so delivered sent or left as aforesaid or upon the application of the party chargeable by such bill with such directions and subject to such conditions as the court or judge making such reference shall think proper to refer such bill and the demand of such attorney or executor administrator or assignee of such attorney or the trustee of his estate thereupon to be settled and taxed by such officer of the court as aforesaid and in case any such reference as aforesaid shall be made on the application of the party chargeable by such bill then without any money being brought into the court

and such court or judge may restrain such attorney or the executor administrator or assignee of such attorney or the trustee of his estate from commencing or prosecuting any action or suit touching such demand pending such reference upon such terms as shall be thought fit

284 COSTS Vol. 4

Taxation after twelve months. Provided always that no such reference as aforesaid shall be directed upon an application made by the party chargeable with such bill after a verdict shall have been obtained judgment signed or a writ of inquiry executed in any action for the recovery of the demand of such attorney or executor adminis­trator or assignee of such attorney or the trustee of his estate or after the expiration of twelve months after such bill shall have been delivered sent or left as aforesaid except under special circumstances to be proved to the satisfaction of the Supreme Court or a judge thereof to whom the application for such reference shall be made.

Act referred to: Solicitors Act, 1843, 6 & 7 Vic. c. 73 (Imperial) has been repealed.

For practice on applications, see s. 29.

An order for taxation under this section should not be made ex parte, Re Bellas (1871), 2 S.C.R. 187.

When a summons for taxation is issued under this section, an inferior court will be restrained by certiorari from proceeding with an action on the bill pending therein, R. v. Police Magistrate at Brisbane, [1936] St. R. Qd. 245; 29 Q.J.P.R. 145.

In the case of an application after one month the court may give such directions and impose such conditions as it thinks proper, Re Gaitskell (1845), I Ph. 576; Re Pender (1846), 2 Ph. 69; Re Brockman, [1909] 2 Ch. 170.

Upon the application of the party chargeable by such bill-Where the retainer is by several clients jointly all should join in the application to refer the bill to be taxed, though the court will make the order on the application of one if the others refuse to apply, Lockhart v. Hardy (1841), 4 Beav. 224; Re Hair (1847), 10 Beav. 187; Re Dawson and Bryan (1860), 28 Beav. 605. Where the retainer is not joint each client is entitled to taxation of the whole bill, Re Allen, Davies v. Chat wood (1879), 11 Ch. D. 244; Re Colquhoun, Ex parte Ford (1854), 5 De a.M. & a. 35; but to avoid multiplicity of taxations the court will, if possible, order a single taxation in the presence of all parties interested, Re Salaman, [1894] 2 Ch. 201. The application may also be by the personal representative of the client, Jefferson v. Warrington (1840), 7 M. & W. 137; and see Langford (Lady) v. Mahoney (1843), 4 Dr. & War. 81; Re Dalby (1845), 8 Beav. 469, or his trustee in bankruptcy, Stephens v. Davies (1827), 6 L.J. Ch. (O.S.) 66; Clarkson v. Parker (1838), 7 Dow!. 87; Re Elmslie & Co. (1869), L.R. 9 Eq. 72; Re Allingham (1886), 32 Ch. D. 36.

Application for an order to tax is a tacit admission of the retainer and when the right to dispute it is required the order must be made by a judge, Re Morgan (1881), 1 Q.L.J. 49,

The bill which may be referred to taxation is not confined to a signed bill or one enclosed with a signed letter, Re Pender (1845), 8 Beav. 299; Young v. Walker (1847), 16 M. & W. 446.

Except under special circumstances-"Those are wide, comprehensive, and flexible words, and I think ... that no court can or ought to lay down any exhaustive definition of them. Charges which in one case would be special circumstances in another would not be such. It is for the discretion of the judge to say what are special circumstances in a particular case", per Lopes L.J. in Re Norman (1886), 16 Q.B.D, 673. The most usual special circumstances are pressure and overcharge, Re Currie (1846), 9 Beav. 602; Re Harrison (1847), 10 Beav. 57; Re Rance (1856), 22 Beav. 177; Re Sladden (1847), 10 Beav. 488; Re Foster, Ex parte Walker (1860), 2 De a.F, & J. 105; Re Newman (1867),2 Ch. App. 707; or overcharge amounting to fraud, Re Harding (1847), 10 Beav. 250; Re Munns and Longden (1884), 50 L.T, 356; Re Pybus (1887), 35 Ch, D. 568; but the court is not confined to them, Re Norman, supra; Re Boycott (1885), 29 Ch. D. 571; Re Cheesman, [1891] 2 Ch. 289; Re Hirst and Capes, [1908] 1 K.B. 982; Re G., a Solicitor (1909), 53 Sol. Jo. 469. A verdict, plus a reference to taxation, is a verdict, and does not create special circumstances, Re White (1913), 30 W.N. (N.sW.) 141.

See also, Re Bill of Costs, Leeper to Goldman, [1950] Q.W.N. 27.

See, further, 42 English and Empire Digest, 177.

COSTS ACT OF 1867 ss.25-26 285

COSTS OF TAXATION

26. Payment of costs of taxation. 6 & 7 Vic. c. 73 s. 37. Upon every such appointment or reference if either the attorney or executor administrator or assignee of the attorney or trustee of his estate whose bill shall have been delivered sent or left or the party chargeable with such bill having due notice shall refuse or neglect to attend such taxation the officer to whom such appointment or reference shall be made may proceed to tax and settle such bill and demand ex parte

and in case any appointment or reference as aforesaid shall be obtained or made upon the application of the party chargeable with such bill or upon the application of such attorney or the executor adminis­trator or assignee of such attorney or trustee of his estate and the party chargeable with such bill shall attend upon such taxation the costs of such appointment or reference shall except as hereinafter provided for be paid for according to the event of such taxation that is to say

if such bill when taxed be less by a sixth part than the bill delivered sent or left then such attorney or executor adminis­trator or assignee of such attorney or trustee of his estate shall pay such costs and

if such bill when taxed shall not be less by a sixth part than the bill delivered sent or left then the party chargeable with such bill making such application or so attending shall pay such costs

and every order to be made for obtaining such appointment or such reference as aforesaid shall direct the officer to whom such reference shall be made to tax such costs of such appointment or reference to be so paid as aforesaid and to certify what upon such taxation shall be found to be due to or from such attorney or executor administrator or assignee of such attorney or trustee of his estate in respect of such bill or demand and of the costs of such appointment or reference (if payable)

Provided always that such officer shall in all cases be at liberty to certify specially any circumstances relating to such bill or taxation and the court or judge shall in all cases be at liberty to make thereupon such order as SUCh court or judge may think right respecting the payment of the costs of such taxation

Provided also that where such reference as aforesaid shall be made as hereinbefore provided then the said court or judge shall be at liberty if it shall be thought fit to give any special directions relative to the costs of such reference

Court may order delivery of bill and delivery up of deeds. And provided further that it shall be lawful for the said court or judge in any case to make such order for the delivery by any attorney or the executor administrator or assignee of any attorney or trustee of his estate of such bill as aforesaid and for the delivery up of deeds documents or papers in his custody possession or power or otherwise touching the same in the same manner as has heretofore been done as regards such attorney by such court or judge where any such business had been transacted in the court.

Act referred to: SolicitOIS Act, 1843, 6 & 7 Vic. c. 73 (Imperial) has been repealed.

For practice on applications, see s. 29.

286 COSTS Vol. 4

Where the taxation is upon the application of the solicitor, the client, if he does not attend, cannot be ordered to pay the costs of the taxation, Ex parte Woollett (1844), 12 M. & W. 504.

Where the bill is reduced on taxation by a sixth part, the costs are not in the discretion of the court; the words of the section are imperative, Higgins v. Woolcott (1826), 5 B. & C. 760.

However small the sum beyond one-sixth which is taken off, the solicitor is equally liable, Swinburn v. Hewitt (1838), 7 Dowl. 314. Items in the cash account are not taken into consideration in applying the rule, but proper disbursements are, Re Haig (1849), 12 Beav. 307; and the whole of the bill relating to professional charges must be considered, Re Osborn and Osborn, [1913] 3 KB. 862; [1911-13] All E.R. Rep. 877.

Expenses paid directly to the witnesses by the client cannot be taken into account, Re Doyle (No.2) (1873), 4 S.C.R. 22. They were allowed, in the particular circumstances, to be withdrawn from the bill in Re MacDonnell, Henchman and Hannan, [1910] St. R. Qd. 324; [1910] Q.W.N. 49.

Special circumstances were certified in Re X (1918), 35 W.N. (N.S.W.) 4. With respect to the discretion as to costs in this case, see Re Richards, [1912] 1 Ch. 49.

Order for the delivery by . attorney . . . of such bill, etc.-"The powers of the court to order delivery of a bill and taxation rest, in the first place, on the original jurisdiction of the court over its officers; in the second place on (this section) which empowers the court to order delivery of a bill in any ca~e where they could, under the Ad, refer the bill for taxation if delivered", Re Foster, Barnato v. Foster, [1920] 3 KB. 306, at p. 314. See also R.S.C. (1900), Order 64, rule 7, title SUPREME COURT. The court may order a bill to be delivered not only as ancillary to taxation but also in order to ascertain whether there are such special circumstances as would cause it to be referred to taxation, Duffett v. McEvoy (1885), 10 App. Cas. 300.

The court has no jurisdiction to order a solicitor to furnish a bill of costs to a client against whom he refuses to make any charge for his professional services, Re Griffith, Eggar and Griffith (1891), 7 T.L.R. 269; Re Landor, [1899] I Ch. 818.

Delay in applying for delivery of a bill will not relieve a solicitor from the obligation to deliver a bill where he has in his possession the necessary materials, Re Baylis, [1896] 2 Ch. 107; Re Foljambe (1846),9 Beav. 406; Re Vann (1854) 15 C.B. 341.

Items disallowed, on the ground that they are for non-professional work and should not have been included in the bill should be taken into consideration for the purpose of estimating whether one-sixth of the bill has been taxed off, Re Dibbs and Farrell (1941), 41 S.R. (N.S.W.) 249 following Re Clark (1851), 13 Beav. 173, and not following Re Taxation of Costs, [1936] 1 KB. 523; [1936] All E.R. Rep. p. 491.

See also. 42 English and Empire Digest, 217, 138.

MODE AND CONSEQUENCES OF TAXATION

27. Skill and responsibility to be considered. In taxing any bill for preparing or drawing any deed contract case or other document it shall be lawful for the taxing officer and he is hereby required in estimating the proper sum to be charged for such transaction to consider the skill and labour properly employed and the expense and responsibility incurred in the preparation thereof.

Compare Solicitors Act, 1891, s. 18, p. 299, post; the Leases Act of 1847, s. 3, title LANDLORD AND TENANT.

The drawing of a document is the application of the mind to the work, not the actual writing. Therefore where a number of leases are drawn for a client in the same form, which is printed, each lease should be separately taxed, Re Marsland (1890), 4 Q.L.J. 3.

See also, Re Federal Deposit Bank, [1937] Q.W.N. 38.

COSTS ACT OF 1867 ss.26-29 287

28. Assistance of prothonotary. 6 & 7 Vic. c. 73 s. 42. In all cases in which such bill shall have been referred to be taxed and settled by the prothonotary of the Supreme Court such officer shall be at liberty to request the master in equity to assist him in taxing and settling any bill or any part of such bill

and such officer so requested shall thereupon proceed to tax and settle the same and shall have the same powers in respect thereof as upon a reference to him and shall return the same with his opinion thereon to the prothonotary.

Act referred to: Solicitors Act, 1843, 6 & 7 Vic. c. 73 (Imperial) has been repealed.

29. Form of application for taxing. 6 & 7 Vic. c. 73 s. 43. All applications made under this Act to refer any such bill as aforesaid to be taxed and settled and for the delivery of such bill and for the delivery up of deeds documents and papers shall be made in the matter of such attorney

Certificate of officer. and upon the taxation or re-taxation and settlement of any such bill the certificate of the officer by whom such bill shall have been taxed shall (unless set aside or altered by order decree or rule of court) be final and conclusive as to the amount thereof

and payment of the amount certified to be due and directed to be paid may be enforced according to the course and practice of the Supreme Court

Enforcement of payment. and it shall be lawful for such court or a judge thereof to order judgment to be entered up for such amount with costs unless the retainer shall be disputed or to make such other order thereon as such judge shall deem proper.

Act referred to: Solicitors Act, 1843, 6 & 7 Vic. c. 73 (Imperial) has been repealed.

The applications referred to may be made under ss. 24-26, and ss. 30, 31. Applications must be made by originating summons (R.S.C. (1900), Order

64, rule 1 (7), title SUPREME COURT). Where an application was made by ordinary summons, the Court allowed

an appropriate amendment of the title of the summons, Re Thynne and Macartney's Bill of Costs, [1902] Q.W.N. 4.

As to what amounts to a retainer, see Pin ley v. Bagnall (1782), 3 Doug. K.B. 155 (implication from acts of parties); Gray v. Wainman (1823), 7 Moore C.P.467 (receipt of payment out of court); Cameron v. Baker (1824), 1 C. & P. 268 (failure to repudiate employment by third party); cf. Hall v. Laver (1842), 1 Hare, 571; Reynolds v. Howell (1873), L.R. 8 Q.B. 398 (action commenced without authority); Parrott v. Echells (1839), 3 J.P. (Eng.) 771 (leaving papers with solicitor); Anderson v. Boynton (1849), 13 Q.B. 308 (consent to consolidation order); Southall v. Keddy (1858), 1 F. & F. 177 (authorising solicitor to conduct suit though not a party); Blyth v. Fladgate, [1891] 1 Ch. 337 (investment of funds by solicitor trustee). Se.e also the Prelimniary Note, p. 278, ante.

In the following cases there was held to be no retainer: Dent v. Halli/ax (1809), 1 Taunt. 493; Drake v. Lewin (1834), 4 Tyr. 730; Atkinson v. Abbott (1855), 3 Drew. 251; Fenton v. Queen's Ferry Wire Rope Co. (1868), L.R. 7 Eq. 267; Wray v. Kemp (1884), 26 Ch. D. 169; James v. Ricknell (1887), 20 Q.B.D. 164; Porter v. Fraser (1912), 29 T.L.R. 91; West End Hotels Syndicate Ltd. v. Bayer (1912), 29 T.L.R. 92; Re Becket, Purnell v. Paine, [1918] 2 Ch. 72.

Where there is a conflict as to the authority between the solicitor and the client, without further evidence, weight must be given to the affidavit against, rather than the affidavit of, the solicitor, Re Paine (1912), 28 T.L.R. 201.

Where the taxing office has found that a balance is due to an attorney on a bill of costs, a jUdgment will not be entered up for the defendant, Jager v. Gannoll (1871), 2 S.C.R. 189. Cf. Ex parte Lloyd (1906), 23 W.N. (N.S.W.) 167.

The Court has not jurisdiction to order that a solicitor be given credit for moneys alleged to have been paid for the client at his request. Ex parte White (1903), 20 W.N. (N.S.W.) 178.

288 COSTS Vol. 4

After judgment has been signed in pursuance of an order made under this section, a stay of proceedings will not be granted, Re Freehill (1905), 22 W.N. (N.S.W.) 98.

TAXATION ON BEHALF OF THIRD PARTIES

30. Third parties applying for taxation. 6 & 7 Vic. c. 73 s. 38. Where any person not the party chargeable with any such bill within the meaning of the provisions hereinbefore contained shall be liable to payor shall have paid such bill either to the attorney his executor administrator or assignee or the trustee of his estate or to the party chargeable with such bill as aforesaid

it shall be lawful for such person his executor administrator or assignee or the trustee of his estate to make such application for a reference for the taxation and settlement of such bill as the party chargeable therewith might himself make

and the same reference and order shall be made thereupon and the same course pursued in all respects as if such application was made by the party so chargeable with such bill as aforesaid

Provided always that in case such application is made when under the provision herein contained a reference is not authorized to be made except under special circumstances it shall be lawful for the court or judge to whom such application shall be made to take into consideration any additional special circumstances applicable to the person making such application although such circumstances might not be applicable to the party so chargeable with the said bill as aforesaid if he was the party making the application.

As amended by the Acts Citation Act of 1903, s. 10, title ACTS OF PARLIA­MENT. Vol. I. p. 76.

Act referred to: Solicitors Act, 1843, 6 & 7 Vic. c. 73 (Imperial) has been repealed.

See ~s. 24. 25, 29. As to cases in which a written agreement has been made between solicitor

and client. see Solicitors Act, 1891, ss. 4, 15, pp. 294, 298, post. This section applies only when the taxation is between solicitor and client,

Rl' Gmndy, Ker.lhaw & Co. (1881), 17 Ch. D. 108; Re Cowdell (1883), 52 L.J. Ch. 246. The taxation is subject to the same conditions as though it were at the instance of the client. Re Wells (1845), 8 Beav. 416; Re Jones (1845), 8 Beav. 479; Re Fysoll (1846), 9 Beav. 117; Re Harrison (1847), 10 Beav. 57; Re Phil/potts (1853), 18 Beav. 84; Re Taylor (1854), 18 Beav. 165; Re Newman (1867).2 Ch. App. 707.

A bill delivered without prejudice and with a denial of right to any bill is liable to taxation. Ex parte Levy (1902), 19 W.N. (N.S.W.) 252.

The following are persons liable to pay: a lessee as regards his lessor's costs, Re Gray, [1901J 1 Ch. 239; Re Negus, [1895] 1 Ch. 73; a mortgagor, Re CareII' (1844), 8 Seav. 150; Re Lees (1844), 5 Beav. 410; Re Thomas (1844), 8 Beav. 145; Painter v. Linsell (1840), 8 Scott 453; Re Bignold (1845), 9 Beav. 269; Re Gray. [1901] 1 Ch. 239; Re Longbotham & Sons, [1904] 2 Ch. 152; Re Cohell alld Cohen, [1905] 2 Ch. 137; a mortgagor's trustee in bankruptcy, Re Allingham (1886), 32 Ch. D. 36; a subsequent encumbrancer, Re Taylor (1854), 18 Beav. 165; Re Jessop (1863), 32 Beav. 406; the liquidator of a company, Re Shewsbury and Leicester Ry. Co., Re Vardy (1851), 20 L.J. Ch. 325; a person obliged to sue in another's name, Re Masters (1835), 4 Dowl. 18; a party to a compromise who has agreed to pay costs, Re Hartley (1861), 30 Beav. 620; Re Grundy, Kershaw & Co. (1881), 17 Ch. D. 108; Re Hulbert and Crowe (1894), 71 L.T. 748; Re Chapman (1903), 20 T.L.R. 3; though not where he has agreed to pay a fixed sum, Re Heritage, Ex parte Docker (1878), 3 Q.B.D. 726; Re Morris (1872), 27 L.T. 554; a person supplying funds for a convict's defence, Re Mills (1885), 79 L.T. Jo. 162. The follow­ing are not within the section: a person who has voluntarily paid the bill, Re

COSTS ACT OF 1867 ss.29·31 289

Becke and Flower (1844), 5 Beav. 406; Langford v. Not! (1820), 1 Jac. & W. 291; a ratepayer, where the bill is payable out of the rates, Re Barber, Ex parte Manchester and Leeds Ry. Co. (1845), 14 M. & W. 720.

See, further, 42 English and Empire Digest, 168.

31. Bills against trustees assignees administrators or executors. 6 & 7 Vic. c. 73 s. 39. It shall be lawful in any case in which a trustee assignee executor or administrator has become chargeable with any such bill as aforesaid for a judge of the Supreme Court if in his discretion he shall think fit upon the application of a party interested in the property out of which such trustee assignee executor or administrator may have been paid or be entitled to pay such bill to refer the same and such attorney's or executor's administrator's or assignee's demand or the demand of the trustee of his estate thereupon to be taxed and settled by the proper officer aforesaid with such directions and subject to such conditions as such judge shall think fit for the payment of what may be found due and of the costs of such reference to or by such attorney or the executor administrator or assignee of such attorney or the trustee of his estate by or to the party making the application having regard to the provisions herein contained relative to applications for the like purpose by the party chargeable with such bill so far as the same shall be applicable to such cases

and in exercising such discretion as aforesaid the said judge may take into consideration the extent and nature of the interest of the party making such application

Provided always that where any money shall be so directed to be paid by such attorney or the executor administrator or assignee of such attorney or the trustee of his estate it shall be lawful for such judge if he shall think fit to order the same or any part thereof to be paid to such trustee assignee executor or administrator so chargeable with such bill instead of being paid to the party making such application

and when the party making such application shall pay any money to such attorney or executor administrator or assignee of such attorney or the trustee of his estate in respect of such bill he shall have the same right to be paid by such trustee assignee executor or administrator so chargeable with such bill as such attorney or executor administrator or assignee of such attorney or the trustee of his estate had.

Act referred to: Solicitors Act, 1843, 6 & 7 Vic. c. 73 (Imperial) has been repealed.

See s. 29, also; R.S.C. (1900), Order 91, rules 35, 36, 83, 97, title SUPREME COURT.

Certain liability for costs is imposed on executors and administrators by s. 1.

Under this section a creditor may apply for taxation of an executor's bill paid out of the deceased's estate, Re Jones and Everett, [19041 2 Ch. 363; but a bankrupt, after discharge, is not entitled to obtain taxation of the bill of costs fixed by the trustee, Re Leadbitter (1878), 10 Ch. D. 388. As to cestui~ que trustent in regard to trustee's bill, see Re Downes (1844), 5 Beav. 425; Re Brown (1867), L.R. 4 Eq. 464.

Except in special circumstances re-taxation will not be ordered where the bill has already been taxed (s. 34) or paid, in which latter case the circumstances must be such as to support an order on the application of the person originally liable, Re Wellborne, [1901] 1 Ch. 312. No taxation can be ordered after the expiration of twelve months from payment, Re Downes (1844), 5 Beav. 425; Re Massey (1845), 8 Beav. 458; Re Rees (1849), 12 Beav. 256. Th~ taxation is as between the original parties, Re Brown (1867), L.R. 4 Eq. 464; Re Story, Ex parte Marwick (1859), 8 W.R. 15; cf. Re Miles, [1903] 2 Ch. 518.

See, further, 42 English and Empire Digest, 173, 174. 10

290 COSTS Vol. 4

32. Delivery of bill to third parties. 6 & 7 Vic. c. 73 s. 40. For the purpose of any such reference upon the application of the person not being the party chargeable within the meaning of the provisions of this Act as aforesaid or of a party interested as aforesaid it shall be lawful for the Supreme Court or a judge thereof to order any such attorney or the executor administrator or assignee of any such attorney or the trustee of his estate to deliver to the party making such application a copy of such bill upon payment of the costs of such copy.

Act referred to: Solicitors Act, 1843, 6 & 7 Vic. c. 73 (Imperial) has been repealed.

Compare the last paragraph of s. 26, and see notes thereto. The references referred to are those mentioned in ss. 30 and 31.

LIMITATION

33. Taxation of bill after payment. 6 & 7 Vic. c. 73 s. 41. The payment of any such bill as aforesaid shall in no case preclude the court or judge from referring such bill for taxation if the special circum­stances of the case shall in the opinion of such court or judge appear to require the same upon such terms and conditions and subject to such directions as to such court or judge shall seem right

Provided always that the application for such reference be made within twelve calendar months after payment.

Act referred to: Solicitors Act. 1843, 6 & 7 Vic. c. 73 (Imperial) has been repealed.

This section does not refer to a payment in respect of the liability for costs not made as a payment of a bill of costs, i.e., of a proper account showing the items or details of the fees, charges and disbursements, Re Wilson & Hemming, [1913] St. R. Qd. 34; [1913J Q.W.N. 9; Duffett v. McEvoy (1885), 10 App. Cas. 300; Re Litchfield's Costs (1917), 34 W.N. (N.S.W.) 5, except where the costs have been paid by a third party, Re Chapman (1903), 20 T.L.R. 3.

The giving of security may constitute payment, Re Boyle, Ex parte Turner (1854), 5 De G.M. & G. 540; Templeman v. Day (1881), 16 L.l.N.C. 91, as may retention by the solicitor of money belonging to the client with the latter's express consent, Re David (1861), 30 Beav. 278; Hitchcock v. Slretton, [1892] 2 Ch. 343; Re Foss, Bilbrough, Plaskitt and Foss, [19121 2 Ch. 161; but not without such express consent, Re Street (1870), L.R. 10 Eq. 165; Re Stogdon, Ex parte Baker (1887), 56 L.T. 355; Re West, King and Adams, Ex parte Clough, [1892] 1 Q.B. 102; Re Frape, Ex parte Perrett, [18931 2 Ch. 284. Debiting the client in the practitioner's books with the amount of the bill does not constitute payment, Ex parte the Executors of Robson (1885), 7 A.L.T. 84. A payment on account is not sufficient, Re Woodard (1869), 18 W.R. 37; Re Angove (1882), 76 Sol. 10. 417; Re Callis (1901), 49 W.R. 316; Watson v. Rodwell (1878), 7 Ch. D. 625; nor is the delivery of a negotiable instrument for the whole amount, unless it is honoured, Re Harries (1844), 13 M. & W. 3; Re Peach (1844), 2 Dow. & L. 33; Re Romer and Haslam, [1893] 2 Q.B. 286; Re a Solicitor (1894), 38 Sol. Jo. 239; Ray v. Newton, [1913] 1 K.B. 249; Stewart-Moore v. Sprague (1917), 34 T.L.R. 113, in which case the date of payment is that on which it was honoured. Sayer v. Wagstaff (1844), 8 Jur. 1083; Re Harries (1844), 13 M. & W. 3. The facts may, however, show that it was the intention of the parties that the instrument should be taken as payment in any event, Re Harries, supra, Re Romer and Haslam, supra; Re Harper (1847), 10 Beav. 284.

Payment to a solicitor-trustee of a bill delivered to his co-trustees does not preclude taxation at the instance of beneficiaries, Re Litchfield's Costs (1917), 34 W.N. (N.SW.) 5.

As to special circumstances, cf. s. 25, and notes thereto. The same principles are applied under this section, except that they are, perhaps, applied more strictly. A strong case must be made, Re Browne, Ex parte Jefferies (1852), 1 De G.M. & G. 322; Re Barrow (1853), 17 Beav. 547; Re Abbott (1854), 18 Beav. 393. There is no rigid rule as to what constitutes special circumstances; in each case the court

COSTS ACT OF 1867 ss.32·34 291

has a discretion, Re Chowne (1884), 52 L.T. 75; Re Norman (1886), 16 Q.B.D. 673, and a Court of Appeal will not interfere unless that discretion. has not ~een exercised judicially, Re Cheesman, [1891] 2 Ch. 289; Gane and Kilner v. Lmley (1909), 53 Sol. 10. 198. The most usual circumstances are overcharge and pressure, and overcharge accompanied by fraud, Re Bennett (1845), 8 Beav. 467 (refusal to complete except on payment of bill, without opportunity for consideration); Re Lett (1862) '31 Beav. 488 (refusal to hand oveJ1 title deeds required to complete). Pressur~ and fraud are not, however, the only grounds for interference, and the court will direct taxation in case of excessive overcharge, Re Norman (1886), 16 Q.B.D. 673; Re Eley (1887), 37 Ch. D. 40; though not where it is trifling, Re Drake (1844), 8 Beav. 123; Re Walsh (1850), 12 Beav. 490; Re Chowne (1884), 52 L.T. 75.

After twelve months have elapsed taxation cannot be ordered, Binns v. Hey (1843), 1 Dow. & L. 661; Re Wilton (1843), 13 L.l.Q.B. 17; Re Harper (1847), 10 Beav. 284; Re Wellhorne, [1901] 1 Ch. 312, following Re Downes (1844), 5 Beav. 425. See also Re a Solicitor. [1961] 2 All E.R. 321.

If no proper bill has been delivered taxation may be ordere~, notwithstan<J.ing the lapse of twelve months, Re Callis (1901),49 W.R. 316; Re Wilson & Hemnllng, [19131 SI. R. Qd. 34; [1913] Q.W.N. 9.

See further 42 English and Empire Digest, 184.

RETAXATION

34. Retaxation. 6 & 7 Vic. c. 73 s. 40. No bill which shall have been previously taxed and settled either under an appointment or order of reference shall be again referred unless under special circumstances the court or judge to whom such application is made shall think fit to direct a retaxation

Review of taxation. Provided nevertheless that where a bill of costs shall have been taxed an order for review of the taxation may be made after rule or summons to show cause by the Supreme Court or a judge thereof and it shall be lawful for such court or judge in case they or he shall think fit thereupon to direct the proper officer aforesaid to review and correct such taxation instanter

Registrar on order to review taxation may examine witnesses. and whether the order applied for be granted or refused the costs of the application shall be in all cases in the discretion of the court or judge and on an order for a review of taxation it may be made part of the order that the registrar do or may examine witnesses viva voce touching any matter in question.

Act referred to: Solicitors Act, 1843,6 & 7 Vic. c. 73 (Imperial) has been repealed.

Re-taxation as between attorney and client was refused where a bill had already been taxed as between party and party, Re Doyle (No. 1) (1873), 4 S.C.R. 20.

Where a bill has been finally settled by the parties with full understanding of the position, it will only be reopened on the ground of something in the nature of fraud, Dixon v. Miller (1897), 1 N. & S. 56.

The general rule is that unless the taxing officer has proceeded upon a wrong pri.ncip1e his decision upon the quantum of an item is conclusive, McLean v. Brisbane Tramways Co. (1899), 9 Q.L.J. (N.C.) 60; Re MacDonnell, Henchman and Hannam, [1910] St. R. Qd. 324; [1910] Q.W.N. 49; Bruty v. Edmundson, [1917] 2 Ch. 285; [1918] 1 Ch. 112; Worsley v. Labouchere (1893), 28 L. 10. 879; Re Congreve (1841),4 Beav. 87; Newton v. Boodle (1847),4 C.B. 359; In the Estate of Ogilvie. Ogilvie v. Massey, [19101 p. 243.

See Re WolD's Bill of Costs, [1943] St. R. Qd. 45 (review of taxation; wrong inference drawn by taxing officer from unconflicting testimony).

On the duty of a judge upon review in a case not involving the exercise of discretion by the taxing master, and on the principles justifying interference by the judge where the taxing master has exercised his discretion, see Russo v. Russo, [1953J V.L.R. 57; [1953] A.L.R. 95, where Sholl J. applied House v. R. (1936), 55 C.L.R. 499, and Lovell v. Lovell (1950), 81 C.L.R. 513.

292 COSTS Vol. 4

On apportionment of costs (on claim and counterclaim), see Smith v. Madden (1946), 73 C.L.R. 129; 52 A.L.R. 337 (Dixon J.). See also Korner v. H. Korner & Co. Ltd., [1951] Ch. 10; 66 T.L.R. 469; [1950] 2 All E.R. 451, where the Court of Appeal enunciated principles on which the costs of successful defendants should be apportioned.

On allowance of two counsel, see Smith v. Madden, supra; Hawkins v. Angus & Coote Pty. Ltd. (1945), 63 W.N. (N.S.W.) 2.

The practice of allowing junior counsel (except in special circumstances) a fee equal to two-thirds of the fee allowed to his leader is proper and should be followed, not only as to fee on brief but also as to refreshers and conferences, Re Williams: Queensland Trustees Ltd. v. Williams and Others, [1949] Q.W.N. 43 per Philp J.

See also as to the reasonableness of counsel's fee and junior counsel's fee, Re Trollt, Bernays & Co., [1955] St. R. Qd. 398.

See McKeouRh v. Smith, [1954] Q.W.N. 50 in relation to mileage charges of a bailiff held to have been incautiously incurred.

See also. Re Hally. Ex parte Dennis, [1955] S1. R. Qd. 451, where the High Court refused leave to appeal.

Other cases are noted under R.S.C. (1900) Order 91. rule 119, title SUPREME COURT.

See. further. 42 Engli,h and Empirc Digest, p. 159.

35. (Repealed.) Repealed by the Criminal Code Act, 1899, s. 3, title CRIMINAL LAW. See

now the Criminal Code, s. 134.

POWERS OF THE COURT

36. General rules may be made by the judges. 15 & 16 Vic. c. 76 s. 223. It shall be lawful for the judges of the Supreme Court or a majority of them of whom the Chief Justice shall be one from time to time to make all such general rules and orders for the effectual execution of this Act and of the intention and object hereof and for fixing the costs to be allowed for and in respect of the matters herein contained and the performance thereof and for apportioning the costs of issues and also for altering the number of days by this Act limited for the return of any writ or for the doing of anything by this Act prescribed or authorized to be done and substituting other days for the same as in their judgment shall be necessary or proper

Separate scales of costs. and if they shall see fit so to do to establish separate scales of costs in actions having regard severally to the amount sued for or the value of the matter sought to be recovered.

Provided that nothing herein contained shall be construed to restrain the authority or limit the jurisdiction of the said court or the judges thereof to make rules or orders or otherwise to regulate and dispose of the business therein.

Act referred to: The Common Law Procedure Act, 1852, 15 & 16 Vic. c. 76 (Imperial)

has been repealed. See also the Supreme Court Act of 1921. s. 11 (2) (vi), title SUPREME

COURT.

COMMENCEMENT AND SHORT TITLE

37. Commencement of Act. Short title. This Act shall commence on the thirty-first day of December one thousand eight hundred and sixty­seven and may be referred to as the Costs Act of 1867.