Paragraph 23 is as follows:-
"It seems to me, therefore, that the role of the assessor is not at large but is confined by the items in the bill that are disputed, all other items being allowed simply because they are not disputed."
22 There may be some debate as to what was intended by those observations. It is not entirely clear as to whether they are intended to speak in terms of jurisdiction or power or merely in terms of general practice or procedure.
23 At the outset, it has to be borne in mind that the regime established by the Act and the Regulation brings into operation an assessment process (as opposed to the taxation process which it replaced). It was the taxation process that involved an item by item consideration. There will be cases where the assessment task can be properly performed by a global approach.
24 The assessment process does not put in place any formal pleading or similar requirement. Largely, the regime involves an informal process intended to effect expedient and less costly resolution of disputes by experienced practitioners. There will be cases in which at least one party (if not all) will be acting in person. The amount in issue may be very modest. The role of the Costs Assessor is not performed in a court context.
25 In the case of assessment where there has been a costs order Form 3 requires the provision of stipulated information relating to the matter (see paragraph 5 of the Form). The attachment of a copy of a bill of costs is merely one method of giving that information. Whilst the prescribed procedure enables the lodging of an objection and a response prior to the lodging of the application, in many cases no objection is lodged. Despite the lack of objection, the procedure still sees the application being referred for assessment.
26 After the application has been referred by the Proper Officer, the conduct of the assessment is in the hands of the Costs Assessor. He has been given powers to exercise (s 207). He is required to give the parties a reasonable opportunity to make written submissions and he is bound to give due consideration to any submissions so made (s 208). He is required to make a decision or determination (including a determination as to the costs payable) in accordance with statutory requirements (inter alia s 206).
27 The language of the Act has thrown up its fair share of problems. The history of the assessment regime has seen Costs Assessors presented with a host of contentious situations. The debate thrown up in the present case is but one of many.
28 A Costs Assessor is placed in the position where each assessment has to be conducted on a case by case basis. In some cases, the areas of dispute may be well defined by the relevant documentation. In others, it may provide little assistance. However the task may be presented to him, he is ultimately left to resolve the application by decision or determination which complies with the statutory requirements.
29 I should digress to observe that pleading processes do not confine the jurisdiction or power of a court or tribunal. Their function is to define and narrow issues. Generally speaking the parties select the issues which they wish to agitate and the court or tribunal resolves the dispute by a determination of those issues. But, this is not always the position. There are cases in which the selected issues will not be determinative of the real questions involved in the case. In those cases the court or tribunal must address the real issues, so that justice is done between the parties and the dispute is determined according to law.
30 In the case of a Costs Assessor, what is required is a performance of statutory functions and the discharging of statutory duties. It may be that in most cases the resolution of issues raised in the assessment will produce a result which discharges the duty to comply with statutory requirements. But, this will not always be the position (even in cases where issues have been well defined).
31 Without seeking to be exhaustive, I mention these matters as illustrations of situations where there may be a need for the decision maker to depart from any selected issues and address other considerations for the purpose of making a decision according to law.
32 I should add that in the case of a Costs Assessor a failure to comply with any of the statutory requirements has of itself the potential to provoke a complaint of error from a dissatisfied party. Of course, there may be a question of the materiality of the conduct of the parties in respect of the force to be given to any such complaint. A party who does not raise an issue before a Costs Assessor can expect difficulty if it is sought to agitate that issue on appeal.
33 In this case, the Costs Assessor was dealing with an application relating to costs payable as a result of an order (it was an application made pursuant to s 202). Accordingly, s 208A has no application to the assessment. Further, I do not accept either the construction which the plaintiff seeks to put on s 208A (5) or its application otherwise to the facts of this case. What is the subject of the application can be expected to be disclosed by the application itself (Form 3 requires the applicant to identify the amount of costs in dispute). In this case, the application for assessment related to the whole of the amount claimed by the plaintiff. It was not limited to part only of the "Party/Party Bill of Costs".
34 It may be that s 208A (2) was intended as imposing a limitation on what may be disallowed in cases where there is an application relating to a bill of costs (the Costs Assessor has to be satisfied that "the disputed costs" are unfair or unreasonable). The expression "the disputed costs" is not defined. Presumably, the manner in which the dispute may be manifested is not the subject of restriction. However, I need not further pursue that matter as s 208A has no application in this case (it applies only where the assessment relates to "a bill of costs").
35 In this case, the relevant provision is s 208F (2). The contrast with s 208A (2) is of importance. Section 208F (2) requires the Costs Assessor to determine the costs payable by assessing the amount of the costs that in his or her opinion is a fair and reasonable amount.
36 Before proceeding further, I should again mention certain other statutory requirements. A Costs Assessor must give due consideration to the submissions that have been made (s 208 (1)). He must consider the matters specified in s 208F (1).
37 There is a statutory duty to form an opinion as required by s 208F (2). In forming that opinion he must give due consideration to any submissions that have been made and consider the matters specified in s 208F (1). He is required to make a determination in respect of the subject of the application.
38 The Parliament has seen fit to impose statutory requirements in respect of which the Costs Assessor is bound to comply. The language of inter alia Subdivision 3 does not justify the view that an absence of dispute (or objection) discharges or relieves the Costs Assessor of the obligation to comply with relevant statutory requirements. The Regulation recognises that even where there is agreement as to an amount, a discretion is retained by the Costs Assessor (clause 26G).
39 Accordingly, I reject the contention that the Costs Assessor has exceeded jurisdiction or power. His determination is consistent with him having complied with the statutory requirements applicable to this particular application. In order to comply with those requirements, he considered that there was a need to assess costs which were the subject of the application (but not identified in the objection) so as to form the required opinion as to what was a fair and reasonable amount. Such an approach was open to him in the circumstances of this case.
40 For completeness, I should observe that in complying with the statutory requirements, there is also a need to see that the requirements of procedural fairness are met. In this case, it is not said that there has been any departure from those requirements. Accordingly, I put that matter aside.
41 I now turn to the matter of bias. It suffices to direct attention to the allegation of apprehended bias. The attention of the Court has been drawn to the usual cases. Stress is placed on what appears in paragraph 3 of the letter. Paragraph 3 contains material which is directed towards expressing the reasoning process behind his determination. It also contains material which is directed to expressing the reasoning process behind the costs orders that were made by him. Strong views are expressed as to the quantum of the costs claimed by the plaintiff. Strong views are expressed as to the conduct of the solicitor for the plaintiff. The authorities make it clear that the expression of views with vigour should not necessitate disqualification ( Galea v Galea (1990) 19 NSWLR 263). It has been said that material contained in the letter demonstrates pre-judgment. I do not accept that contention. It must be borne in mind that the letter is an expression of the reasoning process made after the determination had taken place.
42 In my view, the assertion of bias fails. In presenting his reasons, the Costs Assessor has expressed a strong view to the effect that the costs claimed by the plaintiff were grossly excessive. It was a view that could properly be expressed with force. He has purported to determine the costs payable in an amount that was in his opinion fair and reasonable. In my view, the determination made by him was one that was open to him in the circumstances.
43 I have now dealt with the principal submissions. Accordingly, I shall proceed to make some express mention of other matters agitated either in written submissions or in argument.
44 It was said that there was error of law upon the face of the reasons of the Assessor. The substance of this contention is the assertion that the Costs Assessor failed to follow the approach enunciated in Gallagher . Before proceeding further with this contention, I should clarify one matter. The letter has been taken as the expression of the reasoning process of the Costs Assessor in reaching his determination. In the letter, the Costs Assessor makes some observations concerning the decision in Gallagher . It is common ground, that the decision in Gallagher had not been brought to his attention until some time after the determination had been made. Accordingly, whilst his reasoning process did not accord with what was said in the decision his views on the decision itself did not form part of his reasoning process. I have already dealt with matters relevant to that decision. For many reasons, this contention fails.
45 It was said that the Costs Assessor took into account irrelevant matters. In making this submission, reference was made to paragraphs 2 and 3 of the letter. I do not accept this contention. The thrust of the reasoning process was that the costs were grossly excessive and that the amount allowed was that which in his opinion was a fair and reasonable amount. He relied on inter alia his experience in reaching these views. This was a course open to him. It must be borne in mind that a Costs Assessor is not bound by rules of evidence and may inform himself on any matter in such manner as he sees fit (s 208 (2)).
46 Further, it is said that there was an erroneous finding in that the Costs Assessor proceeded on the basis that the litigation related to a loan of $75,000.00. In respect of this contention, some initial comments need to be made. Firstly, I do not accept that such a finding was made. Secondly, it is largely correct to say that the litigation related to a loan of $75,000.00. Thirdly, even if a different view were to be taken as to this matter, it would not be of such significance as to justify disturbing the determination.
47 The Costs Assessor has merely said that "Item 637 indicates that the litigation related to a loan of $75,000.00". Item 637 appears in the plaintiff's "bill of costs". It was the making of this loan that led to the litigation. The proceedings resulted in a judgment in the sum of $105,000.00. If the reference to the sum of $75,000.00 has any significance, it is to demonstrate the obvious disproportion between what was in dispute and the costs claimed by the plaintiff. The comment was part of the expression of the view that the costs were grossly excessive.
48 The plaintiff bears the onus of demonstrating an entitlement to relief. In my view, the plaintiff has failed to discharge that onus. No basis (be it error or otherwise) has been demonstrated to justify disturbing the determination.
49 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The exhibits may be returned.