Attwells v White (No. 2)

1. [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. [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. [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. [4]

   For the reasons that follow, I have concluded that those affidavits and that report are not admissible in the proceedings.

Background

1. [5]

   Proceedings were commenced in the District Court on 18 December 2017.

2. [6]

   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. [7]

   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. [8]

   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. [9]

   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. [10]

   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. [11]

   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. [12]

   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. [13]

   The issue was postponed for determination by the trial judge. At that stage, no trial judge had yet been appointed.

10. [14]

    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. [15]

   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. [16]

   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. [17]

   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. [18]

   The problems are well illustrated in Ms Horvath SC’s written submissions:

5. [19]

   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:

6. [20]

   Mr Griscti, counsel for Mr Kelly SC agreed with and adopted these written submissions and Ms Horvath’s SC oral submissions.

7. [21]

   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”.

8. [22]

   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. [23]

   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. [24]

   Heydon J set out the test for admissibility in more detail in Makita at [85]:

3. [25]

   This analysis was approved and applied by the High Court in Dasreef: see in particular [133]:

4. [26]

   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.

5. [27]

   The most basic requirements of an expert opinion as set out in Makita and Dasreef have not been met.

Orders

1. [28]

   The affidavits of Ms Davitt dated 20 October 2021 and 1 November 2021 and her expert report dated 13 October 2021 are inadmissible.