Of course that does not mean that eventually Ms Wentworth and Mr Russo may not be successful on the point they have taken. The reason the submission has been rejected is because this Court is not the appropriate forum to deal with it. Even if Mr Rogers is not entitled to recover any professional costs for the work done by his counsel and solicitor, he may still be entitled to recover on an assessment for any disbursements and witnesses' expenses he has incurred. See Cachia v Hanes (1994) 179 CLR 403."
25 In my opinion, there is a significant difference between, on the one hand, the issue which Dunford J held the costs assessor was incompetent to decide, and the issues raised in the cases referred to by him, Ryan v Hansen, Lace v Younan and Baker v Kearney and, on the other hand the issue purportedly determined by the costs assessor in this case, namely, the very existence of any obligation by Mr Rogers to pay costs to his solicitor. The reasons of Dunford J, in my opinion, are distinguishable on that basis.
26 Noteworthy, in my view, is the case of Ryan v Hansen referred to by Dunford J, which concerned the question whether a Local Court in which a costs assessors determination had been registered as a judgment could or should entertain a cross-claim for negligence against the solicitors. The argument was, that the matter should have been dealt with by the costs assessor, in accordance with principles established by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1980-81) 147 CLR 189. After holding that it was implicit in the costs assessors task that he "must determine that there existed relevantly a solicitor/client relationship between the parties to the bill", Kirby J, later in his judgment, discussed the functions of a costs assessor:-
"What emerges from this analysis?
First, I should state the obvious lest it be overlooked. A costs assessor's task is to determine a bill of costs. Items on the bill may be allowed or disallowed. There is no power to determine the validity or otherwise of a cross claim, or to award damages.
Second, a costs assessor may disallow items claimed by a solicitor because they are unfair or unreasonable (s208A), or outside the specific instructions given by the client (s208B(f)).
Third, costs may be disallowed if they have been incurred improperly, or without reasonable cause (s208P(1)).
Fourth, if through the solicitor's negligence or ignorance, expenditure has been incurred, the assessor may disallow such expenditure on the basis that it has not been properly incurred ( Re Massey & Carey ).
Fifth, if, through negligent advice, work has been done or expenditure has been incurred, the assessor may disallow such expenditure, or the cost of that work ( Re Windeyer ).
Sixth, work performed by the solicitor which is useless in accomplishing the objective which the client had in view may also be disallowed by the assessor ( Re Windeyer ).
Seventh, if costs have been wasted by undue delay, or any other misconduct or default on the part of the solicitor, the costs assessor may disallow such costs (s208P(1)).
Eighth, if a court or tribunal makes an order for costs against the client, and the circumstances which brought about that order were, in truth, the responsibility of the lawyer, not of the client, then (subject to the default being characterised as one falling within s208P(1)), the costs assessor may direct the lawyer to repay such costs.
Ninth, where a solicitor is negligent, there may be a number of consequences for the client. The client may be disadvantaged in having work done for which he is later charged, where there has been no benefit from that work. The consequences for the client, however, may go beyond that. The negligence may bring about the failure of the action. The client then loses what he sought to gain by the litigation. Or the client may be disadvantaged in some other way. He may, for instance, alter his position to his detriment as a result of poor advice. Where the solicitor's negligence has consequences beyond the cost of the work performed, the matter is properly one for a cross action.
Tenth, that is not to say that the client, in such circumstances, can afford to ignore an application by the solicitor to have a bill of costs assessed. The client, in such circumstances, not only has a right to claim damages in a cross claim, but the right to resist (upon the grounds set out above) a claim for the cost of the work performed. A negligent solicitor, in such circumstances, can only recover for services which, notwithstanding his negligence, were of some real advantage to the client ( Cachia v Isaacs ).
27 In my opinion, what was said by Kirby J in Ryan v Hansen illustrates that parliament intended that costs assessors be given a role extending well beyond the mere determination of the value of the work done or services rendered. Moreover, I respectfully agree with the opinion of Barrett J expressed at paragraphs 47 and 48 of his judgment of 15 August 2002:-
"Particularly pertinent in the present context are the provisions in s.208H about a costs agreement. In carrying out a Subdivision 3 assessment, an assessor "may" (not "must") obtain a copy of, and have regard to, a costs agreement. The only possibly relevant costs agreement is one between the party in whose favour costs are awarded and that party's lawyers. The assessor is, however, limited in what he or she may do with the information obtained from such a costs agreement. That information must not be used for the purpose of determining the appropriate fair and reasonable costs to be awarded. It follows that the content of the costs agreement must be disregarded entirely in the assessor's evaluation of what is fair and reasonable.
The content of the costs agreement may, however, be used for other purposes relevant to the assessment. It will thus be available for consideration by the assessor if, as here, it is asserted that there is a term positively excluding the charging of costs by the lawyer, so that there is no liability for costs by reference to which a costs order can effectively operate. Use of the costs agreement for that purpose goes to the question whether costs should be assessed at all, rather than the question of the amount that is fair and reasonable."