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 Choose an item. 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. Background 1. Proceedings were commenced in the District Court on 18 December 2017. 2. After various case management and other hearings and directions, the proceedings were allocated a five day hearing date on 24 December 2020, that hearing to commence on 22 November 2021. The associated proceedings between Mr White and Mr Attwells (the Fees Proceedings), had already been ordered by McCallum J to be heard concurrently with these proceedings. 3. As part of case management orders, the plaintiff was required to file and serve all of his evidence by 12 May 2020. It was suggested in an email in May 2020 to the defendants that the plaintiff would not be able to complete service of his evidence in time because Dr Lord was unavailable and the solicitors were trying to obtain evidence from the solicitor at Jackson Lalic Lawyers who was responsible for settling the proceedings, as well as from Mr Harper SC. 4. Issues were raised by the solicitors for the defendants in August 2020 about the unsatisfactory state of the plaintiff's position having not completed service of evidence, yet the Court timetable requiring that the defendants serve their evidence. 5. On 27 November 2020, six months out of time, the plaintiff's solicitor sent an email serving two further affidavits of Noel Attwells and an unsworn affidavit of Dr Lord. 6. On 20 November 2020 Adamson J made an order requiring the plaintiff to identify the affidavits to be relied upon at the substantive hearing within 21 days. This was not complied with and instead, the defendants were notified two months late on 18 February 2021. Ms Davitt was not mentioned. 7. It is common ground that the first mention of Ms Davitt's potential role in the proceedings was on 1 October 2021. Her affidavits were served on 15 October 2021 and 1 November 2021 respectively in that notification. 8. As pointed out to the plaintiff's solicitors by the defendants' solicitors, to be permitted to rely on this material out of time, leave of the Court would need to be sought. A notice of motion was filed. At the hearing of an amended version of that notice of motion on 12 November 2021 that happened to be listed before me, both counsel for the defendants, acting with admirable practicality, acceded to an order that the plaintiff be given leave to rely on the affidavits of Ms Davitt, but subject to evidentiary objections. 9. The issue was postponed for determination by the trial judge. At that stage, no trial judge had yet been appointed. 10. Written and oral submissions made regarding the initial notice of motion as well as oral submissions made on 24 November 2021 have been taken into account. The issue and submissions 1. The evidence on the application comprised the two Davitt affidavits and her report. The 20 October 2021 affidavit deposed to Ms Davitt having been briefed with an email of instructions and an affidavit of Mr Muriniti (solicitor for the plaintiff) sworn on 30 September 2021 in these proceedings. Timesheets were provided and on the bases of these (in my view inadequate) documents, a short and elliptical expert report was prepared dated 13 October 2021. 2. The "bills" the witness was asked to assess were dated 21 September 2021 and relate to work purportedly completed between 2016 and 30 September 2021. 3. Counsel for the defendants argued that the report is full of generalisations. It refers to significant "global issues" relating to the charges in the invoices, but does not in any way identify how those global issues have been applied to the "assessment". 4. The problems are well illustrated in Ms Horvath SC's written submissions: 15. On pages 2 to 3 of First Report, Ms Davitt describes 'global issues relating to charges in the Tax Invoices' and under that she lists four global issues that she says that she identified in the tax invoices. However, after identifying those four issues, the First Report fails to identify how Ms Davitt resolved each of the issues. For example, Ms Davitt: (a) Identifies that an issue in assessing the reasonableness of costs is 'delegation of work', i.e. whether work is being performed at an appropriate level. Ms Davitt does not explain for each of the bills that she has reviewed: (i) the materiality of this issue; (ii) how the quantum of each invoice affected by this issue; (iii) how this issue is resolved in any of the bills which she then assesses; or (iv) which time entries are affected by this issue. (b) Identifies that a further issue in assessing the reasonableness of costs is whether administrative tasks are being performed by lawyers. Again, having identified that this is a possible concern, Ms Davitt does not explain: (i) the materiality of this issue; (ii) the quantum of each invoice affected by this issue; (iii) how this issue is resolved in any of the bills which she then assesses; and (iv) which time entries are affected by this issue. (c) Identifies that where timesheet entries are for one, two, three, four or more hours there needs to be sufficient particularisation to enable an assessor to understand what work is being performed. Having identified this as an issue, Ms Davitt again does not then explain: (i) the materiality of this issue; (ii) the quantum of each invoice affected by this issue; (iii) how this issue is resolved in any of the bills which she then assesses; and (iv) which time entries are affected by this issue. 16. Then, when turning to the individual invoices, Ms Davitt does not explain how each of the "global principles" have been utilised to form her opinions. 17. In respect of the costs orders made by Adamson J, Ms Davitt identifies that she had had difficulty in assessing the relevant costs "without specific indications given as to which of the items claimed would be subject to the 50% reduction or 100% reduction for being related to the Cross Claim". Ms Davitt concludes that "a majority of the claims in the tax invoice dated after about mid March 2020" should be reduced or disallowed in the first instance per the "global objections" and then "the balance recoverable should be discounted by one half for being the costs of the motions". However she does not explain the basis for that conclusion. 18. Ms Davitt has expressly acknowledged that she has "not reviewed the file records" and is "therefore … unable to cross-reference those records with the claims for time reasonably spent on attendances"; however, Ms Davitt states: "Nevertheless, it is often possible to determine the likely length of a letter or document and the reasonable time to draft or peruse same from the particulars provided in the tax invoice and timesheet." 19. No explanation is provided as to the methodology which enabled Ms Davitt to discern the reasonable time claimed for such items from a tax invoice or time sheet alone without reference to the file. 20. Finally it is not clear how Ms Davitt has assessed certain disbursements in relation to Tax Invoice No 874 (fees relating to settling the Supreme Court proceedings post the High Court of Australia decision). That is because Ms Davitt simply says that "the amount claimed in the disbursement section of the tax invoice relating to the costs might be payable depending on the further conduct of the matter". 1. The affidavit of 1 November 2021 has the same problems and some additional ones as set out in the written submissions of Ms Horvath SC: 22. First, it is not clear how Ms Davitt applied the "same principles" as those in the First Report in circumstances where: (a) the First Report was prepared in 2021 and arose from the specific documents she reviewed and the nature of the proceedings to which they related; and (b) the Supplementary Report concerns a Bill of Costs prepared by Ms Davitt in 2016 for the High Court proceedings (HCA Bill). 23. Second, Ms Davitt states that in preparing the HCA Bill she "had the entirety of the L.C. Muriniti & Associates solicitor file". No copy of that file has been produced or contained in a list. For the purposes of s 79, it is not possible to understand the facts and reasoning which justify the formation of the HCA Bill without such information. 24. The basis for Ms Davitt's opinion that "the costs claimed in the High Court bill of Costs are fair and reasonable on a party/party basis" is not identified. Without being identified, it cannot be tested or understood. For example, the High Court proceedings involved the engagement of 4 barristers – one senior counsel and 3 juniors. Ms Davitt does not explain: (a) why she concluded that engaging 4 barristers was reasonable; (b) how she concluded that the rates charged by each of the barristers was reasonable for the work that they performed; (c) how she concluded that the work performed by each of the barristers was reasonable. 1. Mr Griscti, counsel for Mr Kelly SC agreed with and adopted these written submissions and Ms Horvath's SC oral submissions. 2. Mr Newell, solicitor for the plaintiff did not provide any written outline of argument, baldly stating that there was enough detail, and it was unreasonable to expect the report to go into detail about "every little thing". 3. In reply, Ms Horvath SC pointed out that there could at least have been an outline as to how the issues identified were applied to categories of charges or work done, but even that was not done. Decision 1. As stated in Makita, the prime duty of experts in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusion. Ms Davitt's material does not come close to exposing any methodology or reasoning that would allow that evaluation. 2. Heydon J set out the test for admissibility in more detail in Makita at [85]: "[85] In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41])." (Emphasis added.) 1. This analysis was approved and applied by the High Court in Dasreef: see in particular [133]: "[133] In short, the utility of receiving expert opinions rests in what the trier of fact can make of them. If the assumed facts are not stated, no reasoning process can be stated and the opinion will lack utility; if there is no evidence, called or to be called, capable of supporting the assumed facts, no reasoning process, even if stated, will have utility; and even if there are facts both assumed and capable of being supported by the evidence, they will lack utility if no reasoning process is stated. In each instance, a lack of utility results in irrelevance and inadmissibility." 1. I accept the problems identified with the affidavits and report identified by Ms Horvath SC are fatal to their admission into evidence. No reasoning process is stated or applied in a way revealed in the text of the affidavits or the expert report. 2. The most basic requirements of an expert opinion as set out in Makita and Dasreef have not been met. Orders 1. The affidavits of Ms Davitt dated 20 October 2021 and 1 November 2021 and her expert report dated 13 October 2021 are inadmissible. ********** 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: 10 March 2022