Smith v Madden [1946] HCA 19

73 C.LRB.] OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

SMITH AND ANOTHER . é z : . APPLICANTS ; PLAINTIFFS, AND MADDEN AND ANOTHER ; i a . RESPONDENTS. DEFENDANTS,

Oosts—Review of taxation—Action in High Court—Original jurisdiction—Two counsel—Claim and counterclaim—Costs of action—Costs of counterclaim— Apportionment—Division of charges—Common items.

In a superior court, the employment of two counsel upon the trial of a substantial action is reasonable and proper and the taxing officer should treat the briefing of two counsel as usual and proper unless the proceedings are simple involving no questions of consequence.

Kroehn v. Kroehn, (1912) 15 C.L.R. 137, applied.

On the taxation of the costs of an action in which judgment has been given for the plaintiff on the claim with costs and for the defendant on the counter- claim with costs, the claim should be treated as if it stood alone and the counterclaim should bear only the amount by which the costs of the proceedings have been increased by it.

Medway Oil and Storage Co. Ltd. v. Continental Contractors Ltd., (1929) A.C. 88, followed and applied.

Although there can be no apportionment of items of costs between the claim and the counterclaim, it may be necessary to divide a single charge for work, if a severable part of the work relates to the claim and the other severable part relates to the counterclaim.

Observations as to common items.

Review or Taxation.

This was an application, under Order LIV., rule 55, of the High Court Rules, by the plaintiffs in an action to review a taxation of costs by the taxing officer of the District Registry, Brisbane. The action, which involved a counterclaim, was heard before Dixon J.

VOL. LXXUTI. 9

H. C. or A, 1946. —

BRISBANE,

June 20.

MELBOURNE, July 19.

Dixon J.

H. ©. or

1946, — Smrre

Mapvpen.

HIGH COURT [1946.