Limit on the unrecoverability of unusual expenses principle in Victoria

I had to read Abrahams v Wainwright Ryan [1998] VSC 335; [1999] 1 VR 102 from start to finish recently.  I noticed the paragraph the subject of this post which, it seems to me, might be useful in arguing in Victoria against a submission in a solicitor-client taxation that an expense should not be allowed because it was unusual and the unusualness not brought to the attention of the client before it was incurred.  The paragraph suggests that a failure to warn itself is insufficient to require its disallowance, at least where the lawyer suggests that even had the warning been given the client would have authorised the incurring of the cost.Professor Dal Pont says in The Law of Costs (2nd ed, 2009) at [5.26] that ‘Generally speaking, costs of an unusual sum or nature are not allowed as between lawyer and client unless they have been particularly authorised by the client after full prior disclosure, including the fact that they might not be allowed as between party and party.  The leading case is Re Blyth and Fanshawe (1882) 10 QBD 207′

In Abrahams, the client sought to reduce the fees payable to his lawyers on the basis that they sued his neighbour in the Supreme Court when the suit might have been brought more cheaply, and with less exposure in terms of quantum to an adverse costs order, but did not advise the client of this bfore commencing in the Supreme Court. In an entertaining judgment which contains the word ‘congeries’ (his Honour saw the trial judge’s ‘pot-pouri’ and raised it) Brooking JA, with whom Winneke P and Phillips JA agreed, said at [35] (VR 113):

‘It is true that there are to be found in the books cases dealing with taxation of costs which suggest that where the solicitor is proposing to cause costs to be incurred which may not be recoverable from the opposite party on taxation he should tell the client of this. But if, as in the present case, the judge forms the conclusion that the matter of jurisdiction was doubtful and that on the probabilities, had advice been given, the client would have been advised to sue in the Supreme Court, and would have acted on that advice, then it seems to me unjust and wrong that the solicitor should be penalised in costs. If it was correct to say that the solicitor must in all circumstances suffer in costs merely because he did not raise the matter of jurisdiction with the client, the result would be reached that, even if the judge thought that there really was no chance at all that the client, if apprised of the “possibility” of suing in a lower court, would had chosen to do so, and even if the judge thought that it would have been most rash to sue in the lower court, the solicitor would still be made to suffer in costs because he had not raised the question with the client’