Mr. Fisher moved on behalf of the defendant upon notice, that the Prothonotary might be ordered to review his taxation of the defendant's bill of costs in this case, on the ground that upon the taxation thereof he had improperly disallowed certain items. Mr. Fisher stated that this action was brought by the plaintiff upon a policy of insurance effected by him upon a vessel called the Orwell, to which policy the defendant was an underwriter. The action was commenced so far back as the beginning of March last, and the plaintiff originally declared that the vessel was lost through the barratry of the master. However, he subsequently shifted his ground of action, and filed a new declaration, alleging that the vessel was lost by the perils and dangers of the seas. To this the defendant pleaded that the vessel deviated from the course of the voyage prescribed by the policy. Upon these pleas issue was joined on the 12th of Sep last, and the cause was on the 20th Sep ordered to be tried by a special jury. The defendant's attorney, under these circumstances, naturally (and as the learned counsel contended rightly) concluded that it was necessary that the defendant should be prepared for trial during the last November sittings, and accordingly briefs were prepared and proofs examined.

However the plaintiff, although the action had been so long pending and as it would appear from his having amended his declaration, must have been fully cognizant of the facts he intended to rely upon, did not think proper to set down the case for trial. Such being the case, the defendant's attorney made preparations to move for judgment, as in case of a non-suit, during the present term ; but just as the notice of such motion was about being served on the plaintiff's attorney, he served a notice of the discontinuance of the action.

The items which defendant contended the Prothonotary had improperly disallowed, were instructions for brief, two fair copies thereof, for examining proofs, and for attending to search if cause entered and paid. The only reason assigned by the Prothonotary for disallowing these charges was, that as the cause had not been entered for trial such charges could not be made as against the plaintiff. The learned counsel contended, that in this decision the Prothonotary had clearly come to an erroneous conclusion. No doubt by an English decision, Doe v. Neales, it had been decided, that where notice of trial had not been given charges for draft briefs and copies could not be made in England ; but even that ease did not go the length of showing that instructions for brief, and examining proofs, were not proper charges to be made against the party discontinuing an action ; that case had been decided on the ground that it had been the invariable practice in England not to allow the charges complained of, and , that it was better to adhere to the practice although it might be a hard case to the party complaining. But according to the practice of this Court, he (Mr. Fisher) maintained the charges were allowable; it appeared from the affidavit upon which he moved that the Prothonotary had in several similar previous cases allowed the charges, although in those cases they had been objected to on behalf of the plaintiff's. As regards the charge for searching if cause entered and paid, there could he no doubt but that it ought to have been allowed, as by a rule of this Court it was necessary for a defendant to do so before he could move for judgment, as in case of a non-suit.

Their Honors would observe that this was an action in which the evidence of sea-faring men would be required, and it was therefore necessary that their evidence should he obtained with as little delay as possible. If the defendant had waited until he received notice of trial, the short time allowed, eight days - between the day of notice and day of trial would have been quite insufficient to have prepared the defence - the defendant surely was not bound to conclude that the plaintiff: had brought the action merely by way of speculation, and issue having been so long joined, and a special jury ordered, it became the duty of the defendant's attorney to prepare the defence with all despatch.

He (Mr. Fisher) contended that the point involved in the Prothonotary's decision was a matter of principle and not a mere matter of practice, and because the plaintiff, having in reality no cause of action, chose at the eleventh hour to discontinue the suit, defendant was not to have the expense of preparing his defence thrown upon his instead of the plaintiffs shoulders. Under all the circumstances the defendant's attorney was right in having prepared the defence, and the Prothonotary ought, therefore, be ordered to review the taxation.

Mr. BROADHURST showed cause - the case cited by his friend was one directly against him and put him out of Court. That case. was one of much greater hardship upon the defendant than the present ; but the Court decided that it was better to adhere strictly to the practice. This Court must be bound by that decision. If the Prothonotary had upon previous occasions decided differently than he had upon the present, such decisions were incorrect ; but in the resent instance he had decided properly. His learned friend had failed upon all points. The fact that the plaintiff had first declared that the vessel was lost by the barratry of the master, and that he had afterwards amended, and stated that it was lost by the perils of the seas, instead of being, as his friend had asserted, a fact to induce the defendant to believe plaintiff intended to proceed to trial - on the contrary, as it appeared to him (Mr. B.) showed that the plaintiff was dubious as to his cause of action. No point of principle was involved in this decision, in support of which view Mr. Broadhurst cited Archbold's Practice, page 1164. It did not appear from the affidavit in support of this motion, whether the work in respect of which the charges were made had been done or not, but in the case cited these facts were set out with great minuteness. No doubt it might have been prudent and proper for Mr. Johnson to prepare the defence, but the costs of so preparing cannot be charged to the plaintiff, but must be put amongst those charges known as extra costs, and be paid by his own client. The argument that eight days' notice was not sufficient for the defendant to prepare,. was of no weight, as the court, by one of the standing rules, had prescribed such time as being sufficient. As he had before observed, this was no matter of principle, but a mere matter of �11 11s. the amount of the items taxed off. The affidavit in support stated that the only reason given by the Prothonotary for disallowing the items was that the cause had not been entered for trial, but this, although the only reason, was. in his (Mr. B.'s) opinion, a very good and sufficient reason. The defendant had no need to be in such a tremendous hurry to get ready for trial. The Prothonotary's ruling was supported by a strong decision, and as the defendant had thought proper to impugn it, his motion must share the fate of all similar ones, and be dismissed with costs.

Mr. Fisher, in reply, in answer to the objection that it did not appear whether the work had been done, that was not in issue, as the Prothonotary, without going into that question, had decided that as the cause had not been entered the charges could not be allowed, but if a review were ordered, the Prothonotary would go into that matter. It was desirable that the practice should be settled. It appeared that the Prothonotary had decided sometimes one way, and sometimes another, and even if the Court should be of opinion that the defendant was wrong, still as the practice had been unsettled; if the Court should think fit to dismiss the motion, it would dismiss it without costs, especially as it was a matter of considerable importance that the profession should know with certainty the rule on the subject.

The COURT, in giving judgment, said, that the items, instructions for brief and copies, and examining proofs, could not be allowed in this case ; although it might have been prudent and proper for the attorney, for his client's interest, to have prepared the defence, still the costs of so doing must be borne by the client and not by the plaintiff. The Court, however, intimated that cases might arise in which it would be proper to allow charges for examining witnesses, although no notice of trial should have been given. As regarded the charge for searching if cause entered, &c., the Court stated the charge ought to have been allowed, and directed that the same should be forthwith added to the bill; but as the defendant had failed upon the main points. following the rule several times acted upon by the Court, the defendant must pay the costs of the application.

Source: The Shipping Gazette & Sydney General Trade List for Saturday 30 Dec 1848

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