ACN 627 087 030 Pty Ltd as trustee for the YBL Trust (ABN 36 417 292 176) trading as Yates Beaggi Lawyers v Andrew John Price; ACN 627 087 030 Pty Ltd as trustee for the YBL Trust (ABN 36 417 292 176) trading as Yates Beaggi Lawyers v Elisabeth Theodore [2024] NSWDC 121

The applicant sought to be granted leave under s 89(4) of the Legal Profession Uniform Law Application Act 2014 (NSW) to rely upon the expert report of Mr JMR, among others.

Mr JMR disclosed his expertise as having obtained the qualification Costs Lawyer within the jurisdiction of England and Wales in 2014, being a qualification regulated by the Costs Lawyer Standards Board. Mr JMR described the Board as “a separate legal profession” in those jurisdictions “focused solely on the practice of legal costs”. He was admitted to practice in NSW on 11 December 2020. He has only ever practised “exclusively in the area of legal costs since April 2010”.

Mr JMR was briefed to answer a list of questions of law. However, Montgomery DCJ found that Mr JMR’s education, training and experience do not give him an advantage over a referee or a judge of the court in evaluating matters, such as the fairness and reasonableness of another witness’ email response costs, as such assessments call for skills and experience in operational legal practice management. Determining what is fair and reasonable often demands that the evaluator has extensive, perhaps even intimate, knowledge of how tasks are carried out professionally and efficiently by competent and ethical lawyers in the relevant jurisdiction. Mr JMR’s CV does not show any direct experience in practising law in NSW.[6]

The court cited Ahern v Aon Risk Services Australia Ltd [2022] NSWSC 702, and agreed that:

“The purpose of adducing evidence from costs consultants could only be to introduce their expert opinions as to the appropriate hourly rate for [the solicitor] in this case. The Court would be unlikely to receive expert evidence for that purpose. For the Plaintiffs to ask the Court to grant leave and to uphold an appeal ground upon the basis of such opinions would be to propose that the judgment of the Plaintiffs’ own privately engaged experts should prevail over that of the statutorily appointed experts.”[7]

According to the court, evaluating whether costs are fair and reasonable involves analysing various factors: whether the work was necessary, performed reasonably and at a reasonable cost. This assessment typically takes into account the skill, effort and responsibility demonstrated by the legal practitioner, the complexity, originality or challenge of the case, the quality of the work performed and whether the expertise applied was suitable for the nature of the work.[8]

Unfortunately, the court found Mr JMR lacking. Mr JMR’s report was found to extensively present his interpretations of case law and statutory requirements relevant to a cost assessor’s approach. However, in a setting governed by the rules of evidence, which does not apply to cost assessments, his views would likely be inadmissible under the expert evidence rule outlined in s 79 of the Evidence Act 1995 (NSW). In the absence of these rules, these matters are generally left to submissions.[9]

The Applicant’s solicitor argued that Mr JMR is an expert in Cost Assessments and has extensively reviewed numerous bills of costs and thus, familiar with the processes and logic of cost assessments. Still, the court held that Mr JMR’s opinion on whether responses to emails were carried out fairly, reasonably and at reasonable cost lacks the foundation of direct experience in the professional role of a solicitor who manages and conducts litigation, provides advice, takes instructions and exercises discretion in compliance with obligations to the court, opposing counsel, and clients.[9]

The court reiterated that Mr JMR’s training and experience do not sufficiently qualify him to offer assistance on these matters in a way that meets the minimal criteria for the categories of fresh, additional or substitute evidence as specified in s 89(4) of the Legal Profession Uniform Law Application Act 2014 (NSW).[9] According to the court, Mr JMR’s report does not offer acceptable opinion, is not fresh, additional or evidence in substitution within the meaning of s 89(4).[10]

In conclusion, the court refused leave fundamentally on the basis that the document is a written submission and does not offer expert opinion of fact. Mr JMR was found to have opined conclusions  which are matters for the ultimate determination of the court in the appeal and which were well within the expertise (unchallenged) of the costs assessors.[3]

Key Takeaways:

• An expert must possess direct experience relevant to the legal context of the case. Lack of practical legal experience in a specific state or region may render an expert’s assessment of costs with less impactful or inadmissable.
• Expert opinion is restricted to an expert’s specialised knowledge and must avoid encroaching on judicial functions. Expert testimony should provide specialised insights not possessed by the court.

Read the full decision here.