WKA Legal Pty Ltd v Gleeson

Supreme Court of NSW|2018-03-07|Before: Kunc J, Robb J, Mr P

Summary

This dispute is about what might loosely be termed a clash between Local Court and costs assessment proceedings in relation to unpaid solicitors' costs.
The plaintiff ("WKA") is an incorporated firm of solicitors. The defendant ("Mr Gleeson") is a former client of WKA.
On 24 November 2017, WKA commenced proceedings against Mr Gleeson in the Local Court for approximately $50,000 in unpaid legal costs (the "Local Court Proceedings").
On 12 February 2018, Mr Gleeson filed an application in this Court for nearly all of those costs to be assessed pursuant to the Legal Profession Act 2004 (NSW) (the "Act") (the "Assessment").

Some common ground

Three matters were common ground: 1. Insofar as any authorities relied upon in the argument concerned predecessor legislation of the Act, they were nevertheless applicable to the proper construction of the Act. 2. The Registrar of the Court who acts as the Manager, Costs Assessment had not yet referred the Assessment to an assessor as the Manager was required to do under s 357(1) of Act, pending the outcome of these proceedings. 3. Any assessor to whom the Assessment was referred would not have the power to conduct an oral hearing but would have to conduct the Assessment "on the papers" (contrary to the position which now applies under s 69(1A) of the Legal Profession Uniform Law Application Act 2014 (NSW).

The Local Court Proceedings and the Assessment

It is necessary to set out the pleadings in the Local Court Proceedings and some parts of the application in the Assessment at some length (emphases added).
WKA's statement of claim in the Local Court Proceedings includes: "3. Pursuant to a Fee and Service Agreement dated on or about 18 November between the Plaintiff and the Defendant (the "Agreement") and in accordance with instructions received from the Defendant, the Plaintiff provided to the Defendant, legal representation and services and incurred liabilities to third parties on behalf of the Defendant. 4. The Agreement was expressed to be continuing and applied to all matters in which the Defendant instructed the Plaintiff. 5. The Defendant issued instructions to the Plaintiff to provide legal advice, representation and services in the following matters and in which matters accounts were issued to the Defendant in the sum of $47,144.07… 6. The Defendant paid the Plaintiff the sum of $166.00, in relation to invoice numbered 2 referred to in paragraph 5 a. above, leaving a balance outstanding of $46,978.07. 7. By letter dated 28 November 2011, the Defendant terminated the Agreement. 8. Pursuant to the Agreement, including Clause 21.4, upon termination of the Agreement by the Defendant, the Defendant became liable to pay the Plaintiff's fees and expenses including those fees and expenses contained in the tax invoices, or the accounts referred to at paragraph 5."
Mr Gleeson's defence in the Local Court Proceedings includes: "3. In answer to paragraph 3 of the Statement of Claim, the Defendant denies that pursuant to a Fee and Service Agreement dated on or about 18 November 2010 between the Plaintiff and the Defendant (the "Agreement") and in accordance with instructions received from the Defendant, the Plaintiff provided to the Defendant, legal representation and services and incurred liabilities to third parties on behalf of the Defendant. 4. The Defendant pleads that at all material times the Plaintiff was engaged to act on behalf of the Defendant on a speculative basis and that the Defendant never engaged the Plaintiff in his personal capacity but only as Liquidator of King Mortgages and Cash King. 5. The Defendant pleads that:- (a) On or about 14 May 2010 the Defendant in his capacity as Liquidator of King Mortgages and Cash King communicated to the Plaintiff that he would be prepared to pursue the debtors of King Mortgages and Cash King on certain terms. (b) It was an express term and/or an oral term of the agreement upon which the Defendant was prepared to engage the Plaintiff that:- (i) The Plaintiff would be retained by the Defendant on a speculative basis; (ii) The Defendant reserved his rights to cease the collection of the debtors of King Mortgages and Cash King at any time due to the risks involved in the collection of same. Particulars Letter from the Defendant to the Plaintiff dated 14 May 2010 Letter from the Plaintiff to the Defendant dated 21 May 2010 6. The Defendant pleads that:- (a) On or about 18 August 2010 the Defendant, in his capacity as Liquidator of King Mortgages and Cash King and the Plaintiff agreed that the Plaintiff would be retained by the Defendant to do the work on a speculative basis ("the conference"). (b) It was an oral term of the agreement referred to in paragraph 6(a) of this Defence that the work completed by the Plaintiff for the Defendant would be on a speculative basis. (c) On 25 August 2010 and as a result of the conference, the Plaintiff provided to the Defendant in his capacity as Liquidator of King Mortgages and Cash King is a document titled "Conditional (Speculative) Costs Disclosure and Service Agreement" ("the First Costs Agreement"). (d) It was an express term and/or an oral term of the First Costs Agreement upon which the Defendant was prepared to engage the Plaintiff that:- (i) The Plaintiff would be retained by the Defendant on a speculative basis; (ii) The Plaintiff would not be paid and there would be no obligation by the Defendant to pay the Plaintiff unless and until the Plaintiff received funds, being monies recovered from the individual debtors of King Mortgages and Cash King; (iii) It was an express term and/or an oral term of the Agreement between the Plaintiff and the Defendant that recoveries from one individual debtor were not to be applied to meet the costs incurred on a separate individual debtor where that separate individual debtor did not have a successful outcome; (e) The Defendant does not recall ever signing the First Costs Agreement. Particulars Conference between the Plaintiff and the Defendant on 18 August 2010. Letter from the Plaintiff to the Defendant dated 25 August 2010. Conditional (Speculative) Costs Disclosure and Service Agreement dated on or about 25 August 2010 between the Plaintiff and the Defendant. 7. The Defendant pleads that:- (a) On or about 21 October 2010 the Defendant, in his capacity as Liquidator of King Mortgages and Cash King and the Plaintiff agreed that the Plaintiff would be retained by the Defendant to do the work on a speculative basis by way of a revised speculative agreement ("the Second/Variation of the Costs Agreement"). (b) It was an express term and/or an oral term of the Second/Variation of the Costs Agreement upon which the Defendant was prepared to engage the Plaintiff that:- (i) The Plaintiff would be retained by the Defendant on a speculative basis; (ii) The Plaintiff would maintain separate work in progress ledgers for each debtor of King Mortgages and Cash King; (iii) Recoveries from one debtor were not to be applied to meet the costs incurred on a separate debtor where that separate debtor did not have a successful outcome; (iv) Amendment of the definition of "Successful Outcome" as set out in the Second/Variation of the Costs Agreement. Particulars Letter from the Defendant to the Plaintiff dated 1 October 2010. Letter from the Plaintiff to the Defendant dated 21 October 2010 Second/Variation of the Costs Agreement dated October 2010 issued by the Plaintiff to the Defendant under cover of the Plaintiff's letter to the Defendant dated 21 October 2010. (c) The Defendant does not recall every signing the Second/Variation of the Costs Agreement. 8. In answer to paragraph 4 of the Statement of Claim, the Defendant denies that:- (a) He entered into the Agreement with the Plaintiff and therefore that the Agreement was expressed to be continuing and applied to all matters in which the Defendant instructed the Plaintiff. (b) That the First Costs Agreement and/or the Second Costs Agreement were expressed to be continuing and admits that the First Costs Agreement and the Second/revised Costs Agreement (collectively referred to as the "cost agreements") applied to each of the matters by which the Plaintiff was instructed to act on behalf of the Defendant. (c) The offer was expressed by the Plaintiff in the costs agreements to be that the Plaintiff's fees and expenses (if any) were only to be payable if monies were recovered from the individual debtors of King Mortgages and Cash King. 9. In answer to paragraph 5 of the Statement of Claim, the Defendant:- (a) Denies that he issued instructions to the Plaintiff to provide legal advice, representation and services in the following matters referred to at paragraphs 9(c) to (i) of this Defence wherein matters accounts were issued to the Defendant in the sum of $47,144.07."
There is also this further specific pleading in the defence: "(f) King Mortgages v Tracey Leayr (v) Further, and/or in the alternative, the Defendant claims that he is entitled to a set-off in the sum of $4,481.50 being the legal fees incurred by the Defendant by having to engage an alternative legal representative as a result of the Plaintiff's negligent legal advice."
Mr Gleeson's application for the Assessment includes: "8. Is there a costs agreement or purported costs agreement between you and the Law Practice with respect to the costs that you want assessed? If so, state the date when it was entered into and ATTACH copy. Yes, Client Conditional Service Agreement and Client Conditional (Speculative) Costs Disclosure and Service Agreement dated 21 October 2010, a copy of which is annexed hereto and marked with the letter "A". … 10. If you claim that the terms of the costs agreement are not fair and reasonable, explain that claim. If LPA04 applies (see the note to para 1 above) and you claim that the costs agreement or a provision of it should be set aside because it is not fair and reasonable, include particulars of that claim. The Costs Applicant claims that paragraph 6(c) should be set aside as it is not fair and reasonable. For ease of reference, paragraph 6(c) states:- "6(c) If for any reason you elect to discontinue or abandon your claim or claims (which claims will only be commenced by agreement between us) or terminate our retainer or this agreement." The reasons for this are:- … 3. On or about 18 August 2010 the Costs Applicant, in his capacity as Liquidator of King Mortgages and Cash King and the Costs Respondent agreed that the Costs Respondent would be retained by the Costs Applicant to do the work on a speculative basis ("the conference"). 4. It was an oral term of the agreement that the work completed by the Costs Respondent for the Costs Applicant would be on a speculative basis. 5. On 25 August 2010 and as a result of the conference, the Costs Respondent provided to the Costs Applicant in his capacity as Liquidator of King Mortgages and Cash King a document titled "Conditional (Speculative) Costs Disclosure and Service Agreement" ("the First costs Agreement"). 6. It was an express term and/or an oral term of the First Costs Agreement upon which the Costs Applicant was prepared to engage the Costs Respondent that:- (i) The Costs Respondent would be retained by the Costs Applicant on a speculative basis; (ii) The Costs Respondent would not be paid and there would be no obligation by the Costs Applicant to pay the Costs Respondent unless and until the Costs Respondent received funds, being monies recovered from the Individual debtors of King Mortgages and Cash King; (iii) It was and express term and/or an oral term of the Agreement between the Costs Respondent and the Costs Applicant that recoveries from one individual debtor were not to be applied to meet the costs incurred on a separate individual debtor where that separate individual debtor did not have a successful outcome; 7. The costs Applicant does not recall ever signing the First Costs Agreement. … 8. On or about 21 October 2010 the Costs Applicant, in his capacity as Liquidator of King Mortgages and Cash King and the Costs Respondent agreed that the Costs Respondent would be retained by the Costs Applicant to do the work on a speculative basis by way of a revised speculative agreement ("the Second/Variation of the costs Agreement"). 9. It was an express term and/or an oral term of the Second/Variation of the Costs Agreement upon which the Costs Applicant was prepared to engage the Costs Respondent that:- (i) The Costs Respondent would be retained by the Costs Applicant on a speculative basis; (ii) The Costs Respondent would maintain separate work in progress ledgers for each debtor of king Mortgages and Cash King; (iii) Recoveries from one debtor were not to be applied to meet the costs incurred on a separate debtor where that separate orders did not have a successful outcome; (iv) Amendment of the definition of "Successful Outcome" as set out in the Second/Variation of the Costs Agreement." … 13. With respect to the individual matters the subject of this costs dispute, we set out below the Costs Applicant's position:- … (c) King Mortgages v Tracey Leayr … (ii) Further, and/or in the alternative, the Costs Applicant claims that he is entitled to a set-off in the sum of $4,461.50 being the legal fees incurred by the Costs Applicant by having to engage an alternative legal representative as a result of the Costs Respondent's alleged negligent legal advice."
The relevant provisions of the Act are: "322 Making costs agreements … (2) A costs agreement must be written or evidenced in writing." … 355 Consequences of Application If an application for a costs assessment is made in accordance with this Division: (a) the costs assessment must take place without any money being paid into court on account of the legal costs the subject of the application, and (b) the law practice must not commence or maintain any proceedings to recover the legal costs until the costs assessment has been completed. … 358 Costs assessor may require documents or further particulars (1) For the purposes of determining an application for a costs assessment, a costs assessor may, by notice in writing, require a person (including the applicant, the law practice concerned, or any other law practice or client) to do any one or more of the following: (a) to produce, at a specified time and place, any specified document (or a copy of the document), (b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states) including, for example: (i) information as to the instructions given to, or work done by, any law practice in respect of the matter concerned, and (ii) information as to the basis on which the costs concerned were calculated, (c) to otherwise assist in, or co-operate with, the determination of the assessment in a specified manner. 359 Consideration of applications by costs assessors (1) A costs assessor must not determine an application for assessment unless the costs assessor: (a) has given both the applicant and any law practice or client or other person concerned a reasonable opportunity to make written submissions to the costs assessor in relation to the application, and (b) has given due consideration to any submissions so made. (2) In considering an application, a costs assessor is not bound by rules of evidence and may inform himself or herself on any matter in such manner as he or she thinks fit. (3) For the purposes of determining an application for assessment or exercising any other function, a costs assessor may determine any of the following: (a) whether or not disclosure has been made in accordance with Division 3 (Costs disclosure) and whether or not it was reasonably practicable to disclose any matter required to be disclosed under Division 3, (b) whether a costs agreement exists, and its terms."

WKA's submissions

WKA's submissions may be summarised as: 1. Section 359(1) of the Act makes it clear that an assessor must act on the basis of written submissions. The assessor cannot conduct an oral hearing to resolve contested factual or legal matters. 2. In the Assessment, Mr Gleeson has raised, by what appears to be a "cut and paste" exercise, exactly the same matters as are in issue in the Local Court Proceedings. 3. Those matters disclosed a fundamental contest as to what was the relevant costs agreement, relied on express conversations and oral terms and included an allegation in the nature of a cross-claim for negligence. Such matters could only be determined by hearing witnesses and testing their evidence in cross-examination. 4. In those circumstances, the Assessment was futile and should be restrained or prohibited. The appropriate forum for determining the parties' dispute was the Local Court Proceedings. 5. Furthermore, three invoices which were part of the dispute in the Local Court Proceedings were not included in the Assessment. This raised the possibility of inconsistent findings in the Local Court Proceedings and the Assessment as to what was the relevant costs agreement.
In support of those submissions, WKA referred to several authorities.
First, reference was made to two passages from a decision of D Kirby J in Ryan v Hansen t/as Hansens Solicitors (2000) 49 NSWLR 184; [2000] NSWSC 354 ("Ryan"): "38 Accordingly, there is, in my opinion, no power to take sworn evidence, and thereby resolve conflicts in the evidence, as would a court. On important issues the costs assessor can, no doubt, seek particulars, and require verification (s 207(2) and (3)). However, ultimately he or she must determine any factual issue on the documents "in much the same way as Magistrates do in the Small Claims division of the Local Court and Judicial Registrars do in interim applications in the Family Court..." (written submissions Hansens, 5 April 2000, p8). … 49 A costs assessor obviously had no jurisdiction to hear a cross-claim based upon negligence, or to award damages."
Next, WKA relied on these dicta of Basten JA in Wentworth v Rogers; Wentworth and Russo v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 ("Wentworth"): "190 Assuming that the costs assessor has power to decide whether or not there is an agreement not to charge, or to charge at a reduced rate, any decision that the assessor might make is open to reconsideration, 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. In some cases, there might be a right of appeal with respect to such a finding, where an error of law can be identified. However, it is more likely, as in the present case, that the real challenge is sought to be made in relation to findings of fact because the evidence was not complete, perhaps because there had been no cross-examination of any witnesses, who might have been required to give oral evidence in a court proceeding. 191 If the costs assessor did not have power to make findings in relation to such contractual matters, and purported to do so, his or her decision might be set aside as demonstrating legal error. In that case, it would be futile to remit the matter to the assessor; the dispute must be resolved elsewhere. On the other hand, it may be asked whether, if the costs assessor correctly refused to determine the contractual questions, leave could be granted under s 208M and those issues could be raised in the relevant court or tribunal. … 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."
Finally, attention was drawn to the judgment of Hodgson JA (with whom JC Campbell JA agreed) in Doyle v Hall Chadwick [2007] NSWCA 159: "61 In my opinion, Davies AJ was correct to say that a costs assessor, assessing costs between a lawyer and client, can determine disputes as to the terms of the costs agreement, and Dunford J was wrong to say otherwise. However, where the existence of the terms of the agreement are in dispute in a way that would require the hearing of evidence to resolve, it may be appropriate for the costs assessor to decline to resolve the dispute; and in the Muriniti litigation, it would in my opinion have been open and reasonable for Davies AJ to have permitted the question to have been determined in the proceedings before him. As it turned out, the costs assessor did decline to resolve this question; and in my opinion, in those circumstances, the costs assessor should not have issued a certificate which could be converted into a judgment. That is, in a case where there is a real dispute on substantial grounds as to whether any costs are payable, a costs assessor should not complete an assessment by issuing a certificate unless satisfied that the costs are payable, because the certificate can be filed so as to take effect as a judgment."
Reference was also made to the decisions of McDougall J in Patakas v Bevan [2016] NSWSC 161 and Barrett J (as his Honour then was) in 68 Bathurst Street Pty Ltd v NV Legal Pty Ltd t/as NV Lawyers [2009] NSWSC 1145. In both of those cases costs assessments had been restrained pending determination by the Court of issues relevant to the costs assessment. However, neither decision deals precisely with the argument put in these proceedings, but as I understand both decisions, they are implicitly based on the Court being the more appropriate forum for determination of the particular contested factual and legal issues.

Mr Gleeson's submissions

Mr Gleeson's submissions may be summarised as: 1. The Court should not interfere with Mr Gleeson's statutory right to have the costs assessed. 2. The present application is premature. The costs assessor is entitled under the Act to determine both the existence of a costs agreement and its terms. It should be left to the assessor in exercising the assessor's statutory function to determine, first, whether or not the issues can be determined by reference to submissions alone and, second, the appropriateness of the assessment continuing depending upon the answer to the first question. In support of that proposition, reliance was placed on what fell from Santow JA in Wentworth: "40 The Court of Appeal implicitly accepted that with these powers, though falling short of curial, the costs assessor was not only empowered in the first instance to determine the terms of the retainer of counsel and solicitor but should do so. That approach recognises the expeditious administrative process for assessing costs under the Act. For most cases determination by the costs assessor should suffice without necessity for curial review. It would be unusual that the content of the costs agreement was not self-evident from its written record, or its interpretation so problematic that a costs assessor could not, in practice, reach a sufficiently reliable result. But the discretion to order curial review remains as a safeguard for the exceptional cases that warrant it." 1. The Local Court proceedings were "subservient" to the assessment. I understood this submission to be derived from s 355(b) of the Act (see paragraph [16] above). 2. Picking up the reference to the Small Claims Division in the judgment of D Kirby J in Ryan (see paragraph [19] above), the Small Claims Division was frequently confronted with factual disputes and it did not follow that sworn evidence or cross-examination was required. It is convenient to record WKA's response to this submission, which was to note that the Small Claims Division has a discretion to allow cross-examination or in certain circumstances could refer the matter to the General Division for hearing in the usual way: see s 35(4) of the Local Court Act 2007 (NSW) and paragraph 23 of the Local Court Practice Note Civ 1. 3. Insofar as there was any issue of negligence raised, that was Mr Gleeson's risk that the assessor might come to the view that he or she could not deal with it. However, that was not a reason to restrain the entire Assessment.

Consideration

I was satisfied that WKA was entitled to succeed for five reasons.
First, I accept WKA's submission that the issues raised about the applicable costs agreement could not be determined by a costs assessor in the absence of sworn testimony and cross-examination. However, I think a more accurate expression of the test (which I respectfully derive from Basten JA's observations in Wentworth - see paragraph [20] above) is whether the issues raised are able to be dealt with by way of written submissions in a way that accords procedural fairness to the parties. This requires consideration of two issues: 1. The particular issue or issues in dispute and their importance within the universe of matters which the costs assessor is required to decide under the Act (including, but not limited to, the matters referred to in s 359(3) of the Act - see paragraph [16] above). 2. The means available to the costs assessor to inform himself or herself, including by requiring information to be verified by statutory declaration under s 358(1)(b) of the Act - see paragraph [16] above.
There is a spectrum along which any given issue will fall in relation to whether or not it can be resolved in a procedurally fair way on the papers. Circumstances are infinitely various and no general rule can be laid down. For example, it may be that, in the case of a relatively minor issue, procedural fairness would be satisfied by consideration of conflicting statutory declarations and the receipt of written submissions.
However, in the present case, it is clear that the dispute between the parties goes to one of the most fundamental matters in a costs assessment, being the existence and terms of any costs agreement. It is obvious that there will be conflicting evidence about alleged oral communications. If the Assessment were referred to an assessor, I am satisfied that he or she, properly instructing himself or herself, would have to come to the conclusion that the nature of the issues in dispute meant that it was inappropriate for the Assessment to proceed, because to attempt to resolve those issues on the papers would not be procedurally fair to either party.
Second, because I reached a firm view about my first reason, this is not a case where the Court's intervention is premature. Putting it another way, there may be cases where, in the exercise of the Court's discretion, it should be left to the assessor in exercising the assessor's statutory function to determine whether, given the issue involved, the written material was sufficient to enable the question to be determined in a procedurally fair way. For example, the Court may consider that a decision could not be made until the written material that might be requested by an assessor was available, in which case it would be appropriate not to second guess what the assessor might do.
In the present case, the Court is satisfied that proceeding on the papers will not afford the parties procedural fairness. Furthermore, a costs assessor has not yet been allocated and, in the light of my principal conclusion, it would be a waste of time and resources for that step to be taken.
Third, in this case the Assessment does no more than raise the same issues as the Local Court Proceedings. As was pointed out for WKA, the Assessment does not engage in what might be thought to be the more usual exercise of line by line objections to particular items in a bill of costs. Therefore, it cannot be said that there is something raised in the Assessment which will not be dealt with in the Local Court Proceedings.
In any event, I do not accept Mr Gleeson's submission that the Local Court Proceedings are in some way "subservient" to the Assessment insofar as that is intended to suggest that the costs can only be assessed through the costs assessment procedure. To the extent necessary, the Local Court Proceedings will enable the reasonableness of particular charges to be investigated. The costs assessment regime under the Act is not the exclusive means to ascertain the reasonableness of solicitors' costs, which can also be addressed by a court if necessary: see Branson v Tucker [2012] NSWCA 310.
Fourth, while not decisive in and of itself, in my view it is appropriate to accord some weight to the fact that the Local Court Proceedings were commenced first and are not, to borrow the language of the forum non conveniens cases, a clearly inappropriate means of resolving the issues between the parties. On the contrary, for reasons already given, the Local Court Proceedings are the more appropriate means of resolving the present dispute. A related reason in favour of that conclusion is that the Local Court Proceedings also incorporate the three invoices which are not part of the Assessment.
Fifth, and again not in and of itself a determinative consideration, but nevertheless informing the exercise of the Court's discretion, I am unable to identify any material prejudice to Mr Gleeson in not being permitted to pursue the Assessment. In particular, I found Mr Gleeson's legal contention in the Assessment to be rather odd. This is because Mr Gleeson's primary case (in both the Assessment and the Local Court Proceedings) is that the relevant costs agreement contained both written and oral terms. If that is correct, then it is not a costs agreement under the Act because s 322(3) provides that "a costs agreement must be written or evidenced in writing". Mr Gleeson's counsel, to maintain the consistency of his client's position, had to concede that, in pressing for the Assessment to continue, Mr Gleeson had to accept that the costs assessor might find that there was no costs agreement under the Act.

Miscellaneous matters

For completeness, it is necessary to make three final observations.
First, by reference to D Kirby J's decision in Ryan (see paragraph [19] above), the Court accepts WKA's submission that an assessor would be unable to deal with any claim for a set off based on allegations of solicitor's negligence. However, if that were the only complaint about the Assessment, given the very small part that allegation comprises in Mr Gleeson's response, it would be insufficient to warrant the Court restraining the Assessment.
Second, both parties drew my attention to the areas of difference between the judgments of Santow JA and Basten JA in Wentworth, crystallised by Hislop J's consenting judgment where his Honour said at [216] "I note the areas identified by Santow JA where his Honour's conclusions differed from those of Basten JA. However as those differences do not affect the overall result I prefer to express no concluded opinion on them".
In the circumstances of this case, it is unnecessary for me to decide whether there is any material inconsistency between the view of Santow JA at paragraph [40] of Wentworth (quoted on paragraph [23(2)] above), and Basten JA's opinion at [90] of the same judgment (quoted in paragraph [20] above). If there is an inconsistency, in my respectful opinion it may only relate to a question of degree. Both dicta accept that there may be disputes before a costs assessor that should not be dealt with by the assessor. Santow JA appears to confine such cases to an "exceptional" category whereas Basten JA's view of the matter may not be so demanding. I do not need to resolve any potential difference between them in this case. This is because, in my view, it is clear that in this case the dispute could not be resolved in a procedurally fair way on the papers. The circumstances postulated by either judge as being sufficient to take the matter out of the purview of an assessor are satisfied.
Finally, there was some debate between the parties about the appropriate form of relief. Mr Gleeson drew attention to the fact that the Manager, Costs Assessment (who is also a registrar of this Court) had not been joined as a party. It was suggested for WKA that the Court could make an order prohibiting the Assessment. However, I had some reservations about whether the Court could make an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) in the nature of prohibition in the absence of it being directed to a particular officer or decision-maker who had been joined to the proceedings.
While I accept there are dicta to the contrary (see, for example, the view of Kitto J in R v Commonwealth Industrial Court; Ex parte Cocks (1968) 121 CLR 313 at 324) I think the better view is that a relevant decision-maker must be joined to the proceedings in order for an order in the nature of a writ of prohibition to be made. In Craig v South Australia (1995) 184 CLR 163 at 174-5; [1995] HCA 58 at 176, the High Court observed that an order in the nature of certiorari pursuant to the South Australian equivalent of s 69 of the Supreme Court Act is properly made only if it be directed to the court or tribunal which made the decision.
There is no logical reason why the High Court's observation should not also apply to an order in the nature of prohibition. Moreover, that corresponds with the statement of the Full Court of the Supreme Court of NSW in Ex parte Mineral Deposits Pty Ltd; Re Claye and Lynch (1957) 59 SR (NSW) 167 at 177 that the Minister (the decision-maker) "should of course be a respondent to these proceedings" (which were proceedings seeking the writ of prohibition). Aronson and Groves cite Re Claye and Lynch as authority for the proposition that prohibition cannot issue without the joinder of the decision-maker (Aronson, Groves and Weeks, Judicial Review of Administrative Action (6th ed, 2017) at [12.100]).
It ultimately seemed to be the common view of the parties that an injunction directed to Mr Gleeson restraining him from taking any further steps in the Assessment would, upon being brought to the attention of the Manager, Costs Assessment, have the practical result of no further steps being taken by anyone to progress the Assessment by referral to a costs assessor or otherwise. That seemed to me to be the appropriate way to proceed in the absence of any provisions in the Act or its rules applicable to a case such as this. If there was any difficulty about this, I reserved liberty to the parties to apply for any other orders that might be required to give effect to the Court's decision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2018

Legal Profession Act 2004(NSW)

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