In George v Biggs & Anor (No 2) [2015] NSWDC 43, the court was called upon to consider the quantum of expert witness expenses claimed by a witness retained by the plaintiff and subpoenaed by the defendants to attend the trial for cross-examination on behalf of the defendants. The amount ultimately claimed was $31,350 inclusive of GST (see [17]), apparently at least in part by reference to an hourly rate of $1,500.(see [56]).

At [9] it was noted that:

The timing of the attendance of (the witness) at the hearing to give evidence required that a series of timetabling adjustments be made to accommodate the progress of the trial, which had become complicated. This was due to a number of factors that can be conveniently characterised as the accidents occurring in the course of litigation and having the effect of disrupting the plans of the parties concerning the progress of the litigation, including the timing of the calling of witnesses. This had the effect of causing considerable inconvenience to the professional schedule of (the witness) and to his patients.

The defendant proposed payment by reference to a Law Society of NSW and the Australian Medical Association (NSW) Limited revised statement of medico-legal relations that includes a schedule of allowances and suggested fees. An hourly rate of $790 was suggested, only for the duration of the court attendance and travel time – some 5 hours. (At [53]).

Although the witness was called and completed his evidence over the course of one day, he was required to cancel a considerable number of pre-arranged professional engagements and commitments, which included operations, other procedures, meetings, rounds and consultations. He also had to re-familiarise himself with the matters at issue in the proceedings before he gave his evidence: [14]

An issue arose as to the standing of the plaintiff’s solicitor to make an application on behalf of the witness. At [85], the court ruled that  the dictates of justice and the requirement of facilitating a just, quick and cheap resolution of the dispute justified an order that the filing of a separate application by the witness personally, should be dispensed with: s 14, s 56 and s 58(1) of the Civil Procedure Act 2005; UCPR r 18.2(2)(c)

The court held at [97] that the opportunity cost of professional time is a relevant matter to be taken into account. The defendant’s submission that the witness had suffered no loss because the cancelled patient procedures and appointments were rescheduled was rejected at [106].

The defendant was ordered to pay the fees claimed by the expert witness.

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