"185 There will be something of an irony in holding that a costs assessor had the power to determine questions of contractual liability, given the opposition to that conclusion raised by the Appellants in 1998. Unless it is necessary to determine that question in order to deal with the present appeal, in my view the question should be treated as open, for further consideration in a case in which it squarely arises.
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190 Assuming that the costs assessor has power to decide whether or not there is an agreement not to charge or to re-charge at a reduced rate, any decision that the assessor might make is open to re-consideration by leave pursuant to s.208M. If there is disputed evidence which, in substance, the costs assessor does not have power to deal with in the manner usually considered procedurally fair with respect to contractual disputes and absent countervailing considerations, it would seem generally desirable that leave would be given to allow those matters to be agitated in a relevant court or tribunal ...
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193. It would undoubtedly be desirable if a costs assessor had power to refer a question of law to the Supreme Court for determination, being the kind of power sometimes conferred on tribunals. On the other hand, it may have been thought sufficient that the costs assessor would have an implied power not to continue with the assessment of the application, so as to allow the parties to have the contractual issue determined in the court in which the proceedings arose. At least where that court is a court with appropriate jurisdiction, that approach would have much to commend it. In any event, it is not necessary to resolve the precise extent of the assessor's powers for present purposes. The existence of a dispute of this kind, combined with the lack of relevant procedural mechanisms for allowing a hearing and determination in an appropriate manner, would, absent other considerations, generally mandate a grant of leave pursuant to s. 208M of the 1987 Act. "
36 In Muriniti v Lyons [2004] NSWSC 135, Dunford J took a different view and stated:
"56 Having regard to the status and powers of Costs Assessors and the ordinary meaning of the word 'assessor', I am satisfied that the powers of Costs Assessors are limited to determining the value of the work done or services rendered in circumstances where there is no dispute that cost are payable and the only issue is as to the amount. It is no part of their function to determine whether or when such costs are payable. The matters set out in s.208A which they must, and in s.208B which they may, take into account all matters relevant to putting a value on the work done or services rendered and the fairness or justice of the amount claimed; but are not matters which relate to the terms of a costs agreement (particularly if oral) and whether any conditions precedent to payment have been fulfilled. The determination of such questions requires the reception of sworn evidence, which can be tested by crossexamination, and an assessment of such evidence. Costs Assessors do not have the power to deal with such matters.
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58 It could never have been the intention of the legislature that where the liability, for a debt for costs was disputed, a party to the dispute could render the other party to the dispute liable for the debt without any judicial determination of the disputed issues between them simply by having the value of the work assessed by a Costs Assessor and a certificate of determination registered as a judgment in a court of competent jurisdiction. Yet this is precisely what the Defendant has sought to do in the present case. "
37 The Wentworth v Rogers decisions and the Graham decision address the issue of what is meant by "pro bono" and whether there is a liability to pay Counsel's fees. In Wentworth v Rogers [2006] Basten JA did not decide the issue [at 185]. Santow JA decided that the issue of whether there was a liability to pay pro bono costs was one that should be determined by a Costs Assessor. Santow JA expressed the view that Muriniti should be overruled. One of the considerations would be the actual terms upon which Counsel agreed to do the work he was asked to do. It seems to me that these cases involved the interpretation of a written costs agreement. However, dispute raised before the Costs Assessor in these current proceedings involve whether or not the parties made an oral agreement. This dispute depended on the credibility of the witnesses, which could only be resolved by the giving of evidence and cross examination and a Court is the appropriate forum. But even if there were an oral agreement, according to s 184(4) it would be void. It is my view DCL Construction's chances of success on appeal are slim.
38 While DCL Constructions submitted that Di Lizio will be able to adequately present their case of appeal, it does not follow that they have not suffered any prejudice. Di Lizio obtained judgment on 5 July 2005, almost two years ago. They have not received the moneys due and owing. Further, Di Lizio have been called upon to incur legal fees and expend time in defending themselves in the District Court in relation to the same bill of costs because DCL Constructions did not receive legal advice about the right to appeal but did receive legal advice to take District Court proceedings. It is my view, that firstly, because of the lengthy delay in bringing these proceedings; secondly, DCL Construction's low chance of success under s 208L and s 208M of the Act; and thirdly, because the solicitor has already been forced to defend himself in relation to the same bill of costs in the District Court, an extension of time to lodge an appeal or alternatively seek leave to appeal should not be granted. Therefore, the application seeking an extension of time to appeal or alternatively, leave to appeal is refused. The summons filed 5 October 2006 is dismissed.
39 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.