DEAKON RILEE SCHWARZE In Person v THE STATE OF SOUTH AUSTRALIA In Person [2025] SASC 5

First Applicant: DEAKON RILEE SCHWARZE In Person Counsel: MR P ADAMS - Solicitor: DUNCAN BASHEER HANNON First Respondent: THE STATE OF SOUTH AUSTRALIA In Person Counsel: MR W ERICSON - Solicitor: CROWN SOLICITOR'S OFFICE Hearing Date/s: 20/08/2024 File No/s: SCCIV-18-245 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. SCHWARZE v THE STATE OF SOUTH AUSTRALIA (No 4) [2025] SASC 5 Decision of the Honourable Associate Justice Bochner 24 January 2025 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - PARTICULAR ITEMS - DISBURSEMENTS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - PARTICULAR ITEMS - DISBURSEMENTS - WITNESSES - EXPERTS Taxation of costs - extent to which the fees charged by Mr McInnes are claimable as a disbursement against the respondent. Uniform Civil Rules 2020 (SA); Supreme Court Civil Rules 2006 (SA), referred to. Bligh v Tickle Industries Pty Ltd (1958) Qd R 121; W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527, considered. -- 1 of 14 -- -- 2 of 14 -- SCHWARZE v THE STATE OF SOUTH AUSTRALIA (No 4) [2025] SASC 5 1 This is a further decision on a question in the taxation of costs following the settlement of the applicant’s medical negligence claim. This decision deals with the question of the extent to which the fees charged by Mr McInnes are claimable as a disbursement against the respondent. 2 The applicant’s claim arose from an injury that he suffered around the time of his birth. The claim involved complex issues of causation, and was settled following mediation on the basis that the respondent would pay the applicant’s costs, on the standard costs basis, to be agreed or taxed. Like the substantive claim, there have been many issues in dispute on the taxation of the applicant’s costs which have been hotly contested by the parties. 3 In my decision delivered on 2 November 2022, I addressed for the first time the question of the fees charged by Mr McInnes. I described in the following way the work that he carried out: In total, Mr McInnes has claimed fees in the sum of $252,983.50. This compares to the sum of $150,789.10 claimed by senior counsel, Mr Semmler KC, $285,000 claimed by senior junior counsel, Mr Eriksen, and the sum of $222,023.75 claimed by junior counsel, Ms Atkins. It compares to solicitors’ fees claimed in the sum of $335,994.60. It is, without a doubt, a sizeable claim. Mr McInnes, at the time that he was retained by the applicant’s solicitor, charged an hourly rate, of $250 per hour plus GST from when he was retained until October 2017, and thereafter, of $300 per hour plus GST. Since about 1999, Mr McInnes has worked as an investigator, initially conducting investigations for WorkCover and various lawyers. For WorkCover, he carried out factual recovery investigations, which included examining records, and carrying out investigations into the cause of injury. He first assisted lawyers in respect of a medical negligence birth injury claim in about 2007 and since then, he has conducted investigations in relation to more than 35 birth injury cases. He is qualified in neither a health related discipline nor law. Mr McInnes was retained by Peter Jackson, the applicant’s solicitor, in August 2012, to carry out a review of the medical records of the applicant and his mother. He says that the purpose of this was “to ascertain facts relevant to the potential pursuit of a claim for damages arising out of injuries sustained by [the applicant] either caused in the antenatal period or in the perinatal period.” It seems that, to do this, Mr McInnes examined the medical records. Subsequently, he “forensically read” other documents related to the claim and formed a view on the relevant causation question. He says that he was instructed: …to prepare a full breakdown of the facts, including the preparation of charts, research and analysis, to obtain a full factual understanding of the matter which would assist in properly considering the merits of the litigation. Over time, Mr McInnes’ activities included: • Preparation of a chronology; • Drafting and settling letters to experts; -- 3 of 14 -- [2025] SASC 5 Associate Justice Bochner 2 • Attending conferences with solicitor, counsel and expert witnesses; • Copying and collating documents; • Carrying out research; • Purchasing of the medical equipment alleged to have caused the applicant’s injury and learning how it operated; • Attending conferences with the applicant’s parents; • Analysing discovery documents; • Settling pleadings; • Preparing responses to expert reports; • Preparing advice on evidence and on the future conduct of the action; • Conferring as to the choice of senior counsel; • Attending meetings in New Zealand, Sydney and Melbourne with expert witnesses. Over the course of his involvement in the action, he spent many hours on reading, research, collating documents, preparing for conferences, and “debriefing”. At times, Mr McInnes appears to refer to himself as a paralegal. Mr Semmler KC, Mr Eriksen and Ms Atkins have each provided statements in which they set out the value of the work provided by Mr McInnes; there is no doubt that they found his work of assistance in the management of the action.1 (footnotes omitted) 4 In my consideration of the parties’ submissions on the question of Mr McInnes’ fees, I said: The amount of time that Mr McInnes spent working on the applicant’s claim is extraordinary. I have examined his invoices and it appears that he spent in excess of 120 hours (or the equivalent of more than 3 weeks) on research, 111 hours (or the equivalent of more than 2 ½ weeks) on collating and cross-referencing, 93 hours (or the equivalent of more than 2 weeks) on preparing summaries and 28 hours on “red inking”. In addition, he spent many, many hours reading documents, letters, emails and reports. All of this work was charged at either $250 or $300 per hour. While I consider that the fees claimed by Mr McInnes cannot be disallowed as a matter of principle, I am of the view that a significant amount is not claimable against the respondent. I have reached this view for a number of reasons. First, the amount of time that Mr McInnes has claimed for many of the tasks that he carried out appears excessive. He spent many hours on a single task, and his invoices appear to contain many duplications of the same task, that is, the same activity being charged for on more than one occasion. Further, his work has led to significant duplication with the work 1 Decision delivered 2 November 2022, [2] – [7]. -- 4 of 14 -- [2025] SASC 5 Associate Justice Bochner 3 carried out by solicitor and counsel. I do not consider that it is reasonable to expect the respondent to pay for the same work being carried out multiple times by different people. Nor is it reasonable to expect the respondent to pay for excessive hours being spent on single tasks. Second, I do not consider that it is reasonable to require the respondent to pay for the research carried out by Mr McInnes. If the applicant’s legal representatives required the assistance of a medical expert to assist with the preparation of the case and cross- examination, they should have retained one as a shadow expert. The use of an expert for this purpose is specifically provided for in r74.13 of the Uniform Civil Rules 2020. Likewise, I consider that the fees for many of the conferences for which Mr McInnes charged, are not recoverable from the respondent. Time spent carrying out research and then briefing Mr Jackson and Mr Eriksen and other counsel is not claimable against the respondent. Third, many of the tasks carried out by Mr McInnes were tasks that are traditionally carried out by a law clerk or paralegal. This would include preparation of a chronology, collating and cross-referencing documents, and proof reading. While they may be claimable, they should not be claimed at more than the rate for a law clerk. Fourth, a substantial proportion of the work carried out by Mr McInnes appears to be work traditionally carried out by a legally qualified lawyer. This includes drafting and settling pleadings, retaining and corresponding with experts and counsel and interviewing expert witnesses. Mr Ericson has raised the possibility Mr McInnes has, through some of his work, breached s 21 of the Legal Practitioners Act 1981; while it is impossible to answer this question without examining the work itself, I consider that this question is fairly raised on the basis of his invoices. If Mr McInnes’ fees are pressed, then this will need to be addressed. … As I have only examined Mr McInnes’ invoices and not the underlying work, I can do no more than indicate that I have formed the view that much of the work for which he has charged is not claimable against the respondent. If the parties are unable to agree a sum for his fees, a detailed taxation of his work will be required.2 5 Following the filing of further affidavit material by the applicant, the respondent decided not to press the question of a breach of the Legal Practitioners Act 1981. Mr McInnes’ affidavits 6 Five affidavits have now been deposed to by Mr McInnes. Four of them post-date my decision delivered on 2 November 2022. For a period of time, Mr McInnes was joined as a party to the action, to deal with the allegation of a breach of the Legal Practitioners Act. Once this allegation was abandoned by the respondent, I revoked his joinder and refused him leave to be heard on the taxation. 7 It seems that Mr McInnes’ third affidavit (FDN 104), fourth affidavit, (FDN 121) and fifth affidavit (FDN 123) were drafted by Mr McInnes himself and were not settled by the applicant’s solicitor or counsel. The contents of his 2 Ibid, [21] – [28]. -- 5 of 14 -- [2025] SASC 5 Associate Justice Bochner 4 affidavits are, at times, intemperate, irrelevant, misconceived and scandalous. They are also voluminous, discursive and repetitive. I note the affidavit filed by Mr Jackson on 23 August 2024 (FDN 125), in which he conceded that FDNs 121 and 123 were filed without his being aware of their contents. I consider that it was inappropriate for these affidavits to have been filed on behalf of the applicant, without the appropriate oversight of Mr Jackson or another experienced legal practitioner. Their contents have done the applicant and Mr McInnes no favours. The issues to be dealt with in these reasons 8 These reasons deal with two distinct questions, in addition to the individual items to which objection has been taken by the respondent. The first question is the extent to which Mr McInnes’ fees are recoverable on the basis of a standard costs order. The second is the rate at which his fees should be allowed. The extent to which the fees of Mr McInnes are recoverable on the basis of a standard costs order 9 The respondent contends that the majority of Mr McInnes’ fees should be disallowed because, rather than carrying out the work of an investigator, his work was analogous to that of a shadow expert. Indeed, Mr Ericson, on behalf of the respondent, submitted that it is arguable that, at times, Mr McInnes purported to act as a shadow expert, as he “sought to utilise his purported expertise in multiple medical fields to provide preliminary opinions as to various medical matters, and to then use [those opinions] to assist in obtaining opinions from experts who were to give actual expert opinions for use in court and in drafting letters to them.”3 10 Mr Ericson submits that this is the role of the shadow expert, who is retained, not to assist the court at trial, but to assist the party by whom they are retained, in preparing and presenting their case. In this regard, he points to UCR 74.13, which defines a shadow expert as an expert who: (a) is engaged to give advice or an opinion on or assist with the preparation or presentation of a party’s case on the basis that the expert will not give evidence at trial; (b) has not previously provided a report on the subject of the case other than as a shadow expert; and (c) as part of the engagement gives a certificate in the prescribed form certifying that the expert— (i) understands that it is not the expert’s role to give evidence at trial; and (ii) has not previously provided a report on the subject of the case other than as a shadow expert. 11 Mr Ericson submits that Mr McInnes has stated on oath that he has expertise in a range of areas, including obstetrics, paediatric neonatology, paediatric 3 FDN 122, [6]. -- 6 of 14 -- [2025] SASC 5 Associate Justice Bochner 5 neuroradiology, placental pathology and molecular biology. He expressed opinions about the matters arising from the applicant’s medical records based on his own knowledge and expertise and he sets out at length how he used his experience and knowledge to identify the relevant issues and formulate opinions on those issues. He expressed an opinion on the causal link between the events around the time of the applicant’s birth and the injury suffered by him. He purported to assist Mr Jackson and the applicant’s counsel in their communications with the experts who provided reports to be used at trial. 12 Mr Ericson submits that this work was undertaken by Mr McInnes as an unqualified shadow expert, or was work that should have been done by a qualified expert. He says that this work was, in fact, done by the applicant’s experts, of which there were many. 13 Mr Ericson submits that, despite his lack of formal qualifications, Mr McInnes carried out the work of a shadow expert. He conferred with experts and legal advisors on causation, drafted and settled correspondence, gave advice on the question of additional expert evidence that was required, drafted pleadings and witness statements. He further submits that the applicant has, himself, conceded that Mr McInnes was carrying out the role of a shadow expert by submitting that a large number of shadow experts would have had to have been retained to do the work done by Mr McInnes. 14 Mr Ericson contends that, if Mr McInnes is regarded as a shadow expert, then his fees are not recoverable. This is on the basis that the costs of a shadow expert are never recoverable in the usual course on a standard costs basis. Shadow experts are expressly exempt from compliance with the usual duties that apply to experts; this is because their role is to assist the party in preparation or presentation of their case, and not to assist the court or to achieve justice. As a result, these costs are not recoverable against the unsuccessful party. They are an expense that remains one as between solicitor and client and is not recoverable on the basis of a standard costs order. 15 It is the respondent’s submission that the cost of the vast majority of the work done by Mr McInnes is not recoverable as against the respondent. On the basis of his own depositions, he analysed material and expressed opinions on the basis of that material combined with his own experience, knowledge and expertise. The applicant sought to avoid the characterisation of the expression of Mr McInnes’ views as opinion by calling them “factual findings” or “factual assessments”. Such terminology does not change the true nature of the work done, which was to use his expertise to draw conclusions, which is the classic role of an expert. 16 Mr Adams, on behalf of the applicant, submitted that it was appropriate to retain an investigator such as Mr McInnes in order to address all of the causation issues raised as against the factual background of the matter. He said that the applicant was required to use an investigator who had an understanding of the relevant medical issues, including understanding of obstetrics, neonatology, -- 7 of 14 -- [2025] SASC 5 Associate Justice Bochner 6 neurology, neuroradiology and the effect of hypoxia. He submitted that it was appropriate for the investigator to review relevant medical literature on these topics, as well as the medical records relating to the applicant’s birth and then use that information to identify and brief relevant experts. 17 Mr Adams submitted that Mr McInnes has a unique level of experience in carrying out investigations into events such as those surrounding the applicant’s birth, which allowed him to undertake the necessary investigations in a cost effective manner. He submitted that, if the applicant had chosen to use shadow experts instead of Mr McInnes, at least nine different experts would have had to have been retained, at a cost far in excess of Mr McInnes’ fees. 18 Mr Adams contended that, on a standard costs basis, the party in whose favour the order was made is entitled to recover those costs which were incurred necessarily or properly to attain justice. In determining what is necessary or proper, the Court must have regard to the circumstances that existed at the time that the work was done. 19 Mr Adams submitted that it was both necessary and proper to retain an investigator with the experience of Mr McInnes because of the complexity of the case and approach taken by the respondent to the applicant’s case. Further, he said that it was appropriate to retain Mr McInnes because of a recent case in Western Australia in which the applicant had been unsuccessful and where the respondent had relied on the same primary expert as that relied on by the respondent in this matter. He contended that, without Mr McInnes’ involvement, shadow experts would have been required to assist in the areas of cerebral palsy and autism spectrum disorder, cord and neonatal blood gas levels, paediatric neurology, paediatric neuroradiology, neonatology, paediatric neuropsychology and paediatric psychiatry. This would have resulted in expense far in excess of that incurred as a result of the retention of Mr McInnes. 20 Mr Adams rejected the respondent’s contention that Mr McInnes was acting as an unqualified expert or as a shadow expert. He submitted that this characterisation was misleading and unsubstantiated. Further, he noted that this characterisation was rejected by three counsel retained for the applicant, who have all stated that Mr McInnes did not act as a medical expert nor did he provide any unqualified medical or expert opinion. 21 Mr Adams relied on exhibit WW-1 to Mr McInnes’ fourth affidavit (FDN 121), which comprises a schedule with commentary to every item for which he has charged. He submitted that, once that commentary is taken into consideration, there can be no question that his involvement was of benefit to the applicant and it was more cost efficient than retaining numerous different shadow experts covering a range of areas of expertise. -- 8 of 14 -- [2025] SASC 5 Associate Justice Bochner 7 The rate at which Mr McInnes’ fees are recoverable 22 Mr Adams contended that Mr McInnes’ fees should be recoverable at the rate charged by him. He submitted that this rate is justified taking into account Mr McInnes’ experience, skill and knowledge as an investigator. The rate usually chargeable for a paralegal or law clerk is insufficient because the work done by Mr McInnes was of a much higher standard than that carried out by a standard clerk or paralegal. He further submitted that the standard rate charged for an investigator is also not appropriate, because of the specialised nature of the work, combined with his unique experience and knowledge. 23 The respondent submitted that a rate of $100 per hour would be appropriate for the work of Mr McInnes which is claimable. This is based on the rates normally charged by an investigator. Consideration 24 I have no doubt that Mr McInnes’ involvement was of benefit to the applicant, nor do I doubt that he carried out the work for which he has charged. This, however, is not the test to determine whether his charges are claimable as against the respondent on a standard costs basis. 25 Prior to the introduction of the Uniform Civil Rules 2020 (“UCR”), the Supreme Court Civil Rules 2006 provided the following: 264 (2) As a general rule, however, costs are awarded as between party and party (that is, on the basis that the party entitled to the costs will be reimbursed for costs reasonably incurred by the party in the conduct of the litigation to an extent determined by reference to the scale of costs in force, under these Rules or the old rules, when the costs were incurred). 26 This terminology was replaced by the term, “standard costs basis” in the UCR, which provide, in UCR 191.1: standard costs basis means a basis on which costs are required to be shown by the person entitled to payment of costs to have been reasonably incurred in the proceeding (or the relevant part of the proceeding) determined by reference to the relevant costs scale in force when the costs were incurred; 27 Neither the applicant nor the respondent contended that there was any material difference between an order for party-party costs and an order for costs on the standard costs basis. The question remains: were the costs of Mr McInnes reasonably incurred by the applicant. 28 In Bligh v Tickle Industries Pty Ltd,4 O’Hagen J said that costs were reasonably incurred in relation to an action if they were necessary or proper for the 4 (1958) Qd R 121, [10]. -- 9 of 14 -- [2025] SASC 5 Associate Justice Bochner 8 attainment of justice. Asprey J, in W & A Gilbey Ltd v Continental Liqueurs Pty Ltd,5 enlarged upon this, where he said: …a taxing officer in a party and party taxation should allow a successful litigant, in whose favour an order for costs has been made, a just and reasonable amount in respect of each item claimed in such litigant’s bill of costs where such item was, in fact, incurred on behalf of the litigant by his solicitor in respect of some step or matter in the litigation which either (1) was necessarily taken or performed for the attainment of justice or maintaining or defending of the litigant’s rights in the circumstances of the particular case, or, (2) although not necessarily taken or performed for such purposes, would reasonably have been taken or performed for any of those purposes by a solicitor acting at the time when it was taken or performed without extravagance in conformity with the then situation of the case and not in conflict with the statutes and rules, the practice of the Court, and the usages of the legal profession appertaining to such a case. In determining whether an item of costs is “necessary” or “proper” the taxing officer would have regard to the facts in issue between the parties to the litigation, as disclosed by the pleadings, and to all facts which render probable the existence or non-existence of the facts in issue including those matters which would affect the weight or credibility of any such facts. But, in making his decisions upon these matters, the taxing officer should place himself in the position of the solicitor sitting in his office chair engaged in the task of preparing the case for trial and, to use the words of Sachs, J., in Francis v Francis & Dickerson, supra, (P.), at p.96; (All E.R.), at p. 841: “…in particular care must be taken not to be affected by what is colloquially termed ‘hindsight’”. The question of the necessity for or propriety of any item of costs should be judged by the state of things known or which ought reasonably to have been known to a diligent solicitor at the time when the expenditure was made, or the liability therefor was incurred…6 29 I have now had the opportunity to consider the schedule prepared by Mr McInnes in WW-1. Having done so, I conclude that the majority of work carried out was not necessary or proper for the attainment of justice by the applicant in this case. 30 During the oral argument, both parties accused the other of semantic quibbling. I have formed the view that the applicant has sought to tailor the description of the work done by Mr McInnes so as to make it claimable against the respondent. I consider that, once the true nature of his work is identified, it is clear that little of his work is properly claimable on the standard costs basis. 31 On the one hand, the applicant has sought to portray Mr McInnes as having a unique expertise in “investigating” these types of claims. On the other hand, Mr Adams was at pains to distance the applicant from any claims of expertise on the part of Mr McInnes. This was done by the use of the words “factual”, “fact”, “factually” and the like in the description of his work, to make it appear that he was doing something other than hypothesising on the cause and nature of the applicant’s injuries on a largely uninformed basis. 5 [1964] NSWR 527. 6 Ibid, 534-535. -- 10 of 14 -- [2025] SASC 5 Associate Justice Bochner 9 32 By this, I do not mean that he was uninformed about what occurred; rather, I mean that, despite his research and investigating, he remained no more informed than another lay person opining on matters about which only a true expert could opine. 33 It is the applicant’s position that Mr McInnes was not a medical or scientific expert, nor was he purporting to be one. If this is accepted, it is difficult to see any basis on which his work was necessary or proper, save for work that would normally be done by a clerk or paralegal, such as chronologies. The use of words such as “factual investigator”, “factual findings”, “factual information”, “factual investigator view” and so on does not change the nature of the work done by him to work that is claimable against the respondent. Nor does the use of terms such as “forensically read”,7 “factually assessed”,8 “investigative findings”,9 “investigative factual findings”10 and so on. 34 When Mr McInnes’ affidavits are stripped back to plain language, it can be seen that his work amounted to voluminous research resulting in the expression of opinions based on his reading and analysis of medical and scientific literature and the applicant’s medical records. Whether that is labelled as an expression of expertise, as the respondent would have it, or as the use of “acquired knowledge and experience” as it is called by Mr McInnes himself, is neither here nor there. 35 The applicant’s position as to Mr McInnes’ expertise is, in fact, at odds with his own description of his expertise and his role in the case. He says, for example: …my “role” and my “work” is to identify why an iatrogenic birth related Hypoxic Ischemic Injury (HII) arising from doctor or hospital related treatment occurred and the relationship of that treatment to the damage.11 36 What he has described is the classic role of the expert witness in a case of alleged birth injury. Mr McInnes, however, has disavowed any expertise in this regard, and in fact, such expertise could only be achieved through years of postgraduate experience and study in the relevant fields, not through mere reading of relevant textbooks and journals. When I say “mere reading”, I do not mean to belittle the work that Mr McInnes did; rather, I mean to stress that more than reading of material such as this is required before a person could be expected to identify such issues in any meaningful way. The most that Mr McInnes could do is to form a lay person’s hypothesis of what might have occurred. 37 The difficulty for the applicant is that Mr McInnes has purported to do far more than this. He has, in fact, asserted knowledge and expertise as a result of his 7 FDN 56, [24]. 8 FDN 82, [45]. 9 Ibid, [64]. 10 FDN 104, [158]. 11 FDN 82, [51]. -- 11 of 14 -- [2025] SASC 5 Associate Justice Bochner 10 work in this type of litigation in the past, and try as he might, Mr Adams is unable to distance the applicant from this profession of expertise. 38 I consider that, even if the work done by Mr McInnes had been carried out by Mr Jackson or another lawyer working with him, the work would not be claimable as against the respondent. Preparation of chronologies and working hypotheses, summaries of case notes and analysis of expert opinion would be allowable, but research of the type carried out by Mr McInnes, leading to the formulation of what is, in effect, an expert opinion on causation is well beyond the role of a legal practitioner or a lay consultant. 39 I accept that some of the work done by Mr McInnes is claimable on the standard costs basis. This includes work such as preparing chronologies and the like. I consider, however, that the amount of time that he spent on tasks like this was excessive. I further consider that the rate at which this was charged is also excessive. This is work that would normally be done by a clerk, and should only be allowed at clerk’s rates. I reject the applicant’s submission that a higher rate should be allowed because of Mr McInnes’ expertise as an investigator. 40 Ultimately, the work of this nature carried out by Mr McInnes was the routine work that one would expect to be done in a medical negligence claim; the fact that this was a complex and fiercely disputed claim does not justify the acceptance of unusual rates for the routine work for a claim such as this. 41 I do not consider that the respondent is liable for any of the research that Mr McInnes carried out. I do not consider that it is reasonable or proper for a lay person to spend well over one hundred hours educating himself on matters which require true expertise. Much of the work for which he charged involved reading and research of medical and scientific matters; these are matters the understanding and application of which require true expertise and a real expert would have been in a position to provide advice on those questions without undertaking the research that Mr McInnes undertook. 42 I reject the applicant’s contention that the assistance of Mr McInnes was necessary to identify the issues and relevant experts; the issues in contention were clear from the hospital records, not least that the Laerdal bag was assembled incorrectly. This was clearly noted in the applicant’s hospital records on 22 September 2006, as was the nature of the error that was made. As a result, statements about the assistance provided by his research in this regard, such as that found at [45.8] of his second affidavit must be significantly overstated. I accept that his work was of assistance to the applicant, indeed, I accept the statements of the applicant’s solicitors and counsel about the value of the work that he carried out. I do not consider, however, that the costs of his work were necessarily or properly incurred, with the effect that the respondent should be liable for it on a standard costs basis. Ultimately, the expert evidence was largely directed by the first reports obtained by each party: those of Dr Harbord for the applicant and Prof MacLennan for the respondent. Dr Harbord was one of the applicant’s -- 12 of 14 -- [2025] SASC 5 Associate Justice Bochner 11 treating specialists and given the identification of the error with the Laerdal bag in the applicant’s hospital records within a few days of his birth, no extraordinary experience as an investigator was required to identify the likelihood of a claim or Dr Harbord as the logical starting point for an expert opinion. The subsequent expert reports were then the natural consequence of opinions expressed by Prof MacLennan in his report. 43 I consider that there is no need to analyse whether Mr McInnes was acting as an unqualified expert or as a shadow expert. Ultimately, it is the nature of the work that he carried out that will be determinative of whether it can be claimed against the respondent, not how it is characterised by either party. As a result, I do not make any findings about either of these questions. I have explained why I consider that the nature of the work carried out by him renders the majority of it outside the realm of disbursements for which the respondent is liable on the basis of an order for costs on the standard costs. 44 Of the work done by Mr McInnes, I have compiled a list for which I consider that the respondent is liable. In compiling this list, I have taken a broadbrush approach based on what I consider is reasonable given the facts and circumstances of the case. I have not addressed each item in “WW-1”. I have used the categories of work performed by Mr McInnes that I identified in my decision of 2 November 2022. 45 The following work is allowed: • Reading of medical records and preparation of a chronology – 75 hours; • Drafting correspondence and other documents – 75 hours; • Copying and collating documents – 75 hours. 46 I have not made any allowance for: • Settling letters to experts; • Attending conferences with solicitor, counsel and expert witnesses; • Carrying out research; • Purchasing of the medical equipment alleged to have caused the applicant’s injury and learning how it operated; • Attending conferences with the applicant’s parents; • Analysing discovery documents; • Settling pleadings; -- 13 of 14 -- [2025] SASC 5 Associate Justice Bochner 12 • Preparing responses to expert reports; • Preparing advice on evidence and on the future conduct of the action; • Conferring as to the choice of senior counsel; • Attending meetings in New Zealand, Sydney and Melbourne with expert witnesses. 47 As to the appropriate rate, I consider that the applicant is entitled to recover the rate allowable for a non-lawyer employed or engaged by a lawyer in accordance with Item 9 of the Scale of Costs in Schedule 2 of the Supreme Court Civil Rules 2006 to 17 May 2020, and thereafter in accordance with Item 7(b) of the Higher Courts Costs Scale in Schedule 6 of the UCR. While I accept that Mr McInnes has significant experience, and that this was a complex matter, I reiterate my view that the work that he carried out was the routine work that would be expected in a claim of this nature. As a result, the respondent should not be liable for any amount beyond the standard rate charged for this type of work. 48 Mr McInnes was engaged from 27 July 2012 to 6 April 2021. During this period, the applicable rate ranged from $140.00 per hour to $193.80 per hour. I will allow the midpoint of these two rates, $166.90 per hour, for Mr McInnes’ work. Conclusion 49 It is unfortunate that the affidavit material filed by the applicant has to a large extent missed the point of this process. It is not to determine the value of Mr McInnes’ work to the applicant. There can be no doubt that his work was highly valued by the solicitor and counsel working on the case. They have said so, and I accept that this is the case. Nor should anything in this judgment be taken to suggest that they should not have retained him at all, or should not have retained him to do the work that he did. That is a matter entirely for them. 50 This judgment only addresses the question whether the respondent is liable for Mr McInnes’ fees on the standard costs basis. Having considered many hundreds of pages of affidavit material, and having listened with care to the oral submissions made by the parties, I have reached the conclusion that the respondent is liable for only a small part of the work done by him. -- 14 of 14 --