Attwells v White (No. 2) [2021] NSWSC 1520

Supreme Court New South Wales

Medium Neutral Citation: Attwells v White (No. 2) [2021] NSWSC 1520 Hearing dates: 24 November 2021 Date of orders: 24 November 2021 Decision date: 26 November 2021 Jurisdiction: Common Law Before: Lonergan J Decision: The affidavits of Ms Davitt dated 20 October 2021 and 1 November 2021 and her expert report dated 13 October 2021 are inadmissible. Catchwords: EVIDENCE – opinion evidence – exceptions – expert opinion - s 79 Evidence Act 1995 – whether evidence of costs assessor admissible – reasoning not exposed – methodology of "assessment" not elucidated – evidence inadmissible Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Category: Procedural rulings Parties: Noel Bruce Attwells (Plaintiff) Gary Alan White (First Defendant) John Kelly SC (Second Defendant) Representation: Counsel: R Newell (Solicitor)(Plaintiff) A Horvath SC (First Defendant) I Griscti (Second Defendant)

Solicitors: L.C. Muriniti & Associates (Plaintiff) Gilchrist Connell Solicitors (First Defendant) Mills Oakley Lawyers (Second Defendant) File Number(s): 2017/382284 Publication restriction: Nil

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Judgment 1. This judgment concerns objection taken to the tender of two affidavits of a costs consultant, Chris Davitt, dated 20 October 2021 (attaching a purported expert report dated 13 October 2021) and 1 November 2021. 2. The affidavits are sought to be deployed by the plaintiff in a professional negligence claim against a solicitor Mr White and a barrister Mr Kelly SC. It seems their purpose is to assist in proving the "costs as damages" part of the plaintiff's case against those defendants. 3. The only relevance of Ms Davitt's evidence in the proceedings is as an expert costs consultant. It was submitted, correctly, that the affidavits and expert report did not comply with the requirements of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 ("Makita") and Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 ("Dasreef") because there was an absence of reasoning, no demonstration or analysis as to how particular figures and conclusions were arrived at and only vague reference to global issues without any elucidation of how Ms Davitt had taken those matters into account. 4. For the reasons that follow, I have concluded that those affidavits and that report are not admissible in the proceedings.