Costs Taxation in a Medical Negligence Settlement: When Are a Lay “Investigator’s” Fees Recoverable as Disbursements on the Standard Costs Basis?

Introduction (Mandatory Fixed Text) Based on the authentic Australian judicial case Applicant v Respondent (No 4) [2025] SASC 5 (SCCIV-18-245), this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of South Australia (Civil)

Presiding Judge: Associate Justice Bochner

Cause of Action: Taxation of costs following settlement of a medical negligence claim; dispute over whether fees charged by a non-lawyer consultant were recoverable as disbursements on the standard costs basis

Judgment Date: 24 January 2025

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Standard costs basis

Keyword 3: Taxation of costs

Keyword 4: Disbursements

Keyword 5: Shadow expert

Keyword 6: Necessarily or properly incurred

Background

The proceeding did not re-litigate the medical negligence claim itself. That substantive claim had already settled after mediation, with the Respondent agreeing to pay the Applicant’s costs on the standard costs basis, to be agreed or taxed. What remained was a familiar but high-stakes aftershock in civil litigation: when the bill arrives, which items must the losing party pay?

At the centre of this costs dispute was a substantial charge for work performed by a non-lawyer retained during the long preparation of the medical negligence case. The Applicant characterised the consultant as an “investigator” who helped organise factual material, understand the records, and manage the complexity of causation issues. The Respondent argued that the work was, in substance, closer to what a shadow expert does—advising a party behind the scenes on technical questions—work that is ordinarily not recoverable on a standard costs order.

This judgment is therefore a practical guide to a recurring costs question: even if work was genuinely useful, and even if it was actually done, does it follow that the other side must pay for it?

Core Disputes and Claims

The legal focus in dispute between the parties was:

1. Whether the consultant’s fees were “reasonably incurred” such that they were recoverable against the Respondent on the standard costs basis as disbursements, having regard to the governing rules and the “necessary or proper for the attainment of justice” test.

2. If any part of those fees were recoverable, what rate should be allowed on taxation: the consultant’s invoiced hourly rate, an investigator’s market rate, or a clerk/paralegal scale rate.

Relief sought:

Applicant: Allow the consultant’s fees (or a substantial portion) as recoverable disbursements on the standard costs basis; allow the fees at or near the consultant’s invoiced hourly rate.

Respondent: Disallow the majority of the consultant’s fees; alternatively, allow only limited categories at a significantly reduced hourly rate.

Chapter 2: Origin of the Case

The litigation backstory matters because costs are not judged in a vacuum. In complex medical negligence claims, especially those involving causation and competing medical narratives, parties often build their case by assembling large volumes of records, timelines, and expert material. The Applicant’s underlying injury occurred around the time of birth, and the claim raised difficult causation questions requiring careful reconstruction of events, documentation, and expert interpretation.

In that environment, the Applicant’s legal team retained a non-lawyer consultant early in the case. The consultant’s involvement extended over many years. The consultant undertook a wide range of tasks: reviewing medical records, preparing chronologies, collating documents, attending conferences, drafting correspondence, engaging with expert-related material, and forming views about causal mechanisms. The consultant’s billed time and total fees were substantial, comparable in size to major professional fees in the matter.

The conflict foreshadowing came later, after settlement, when the Respondent scrutinised the costs claim. The Respondent did not need to show the consultant’s work was worthless. The critical move was narrower and more powerful: to argue that, as between the parties, much of the work was not of a kind the losing party should be made to pay on a standard costs order—particularly where the work resembled expert analysis or duplicated legal work.

In other words, the deterioration of the relationship between the parties in the costs phase followed a common pattern in civil litigation:

Step 1: the successful party says, “We did what we had to do to win.”

Step 2: the paying party says, “You may have chosen to do it, but you did not have to do it at our expense.”

Step 3: the Court is asked to draw a line between necessary preparation and elective expenditure.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

1. Consultant affidavits and schedule explaining work: The consultant filed multiple affidavits and a detailed schedule itemising tasks and offering commentary on why the work was said to be justified and cost-effective. The schedule sought to frame the tasks as “factual” work—reviewing records, identifying issues, and helping brief experts.

2. Evidence from legal representatives about utility: Senior and junior counsel, and the solicitor, provided statements describing the consultant as valuable and helpful in managing the litigation, suggesting the consultant’s contribution improved efficiency and assisted in handling complex causation issues.

3. Comparative cost argument: The Applicant argued that if the consultant had not done the work, multiple shadow experts across different specialties would have been needed, leading to far higher expense. The consultant was portrayed as a cost-saving mechanism.

4. Ex ante necessity framing: The Applicant stressed that costs must be assessed by reference to the circumstances at the time the work was done, and that the case’s complexity justified retaining a consultant with specialised experience in birth injury investigations.

Respondent’s Main Evidence and Arguments

1. Characterisation as shadow expert: The Respondent argued the consultant’s work was, in substance, expert-type work. The Respondent pointed to the consultant expressing opinions across specialised medical fields and using those opinions to assist in communications with retained experts, including shaping letters and identifying issues.

2. Rules-based argument: The Respondent relied on the Uniform Civil Rules 2020 (SA), including the concept of a “shadow expert” in r 74.13. The Respondent submitted that shadow expert costs are not ordinarily recoverable on a standard costs basis because the role is to assist a party, not the Court, and the usual expert duties do not apply.

3. Duplication and excess: The Respondent contended that even if some tasks were claimable, the time recorded was excessive and duplicated work performed by solicitors and counsel. A paying party should not be required to fund multiple layers of the same work.

4. Rate submission: The Respondent proposed a much lower hourly rate for any allowable work, consistent with investigator rates (or, by implication, non-lawyer assistance rates rather than specialist professional rates).

Core Dispute Points

1. Nature of the work: Was the consultant truly doing “investigation” and clerical preparation, or was the consultant effectively doing expert analysis of causation?

2. Recoverability on standard basis: Even if the work helped the Applicant, was it “reasonably incurred” as between the parties?

3. Proper classification and rate: If some work was allowable, should it be allowed at a clerk/paralegal scale rate, not the consultant’s invoiced rate?

4. The “hindsight” trap: Should the assessment be made by reference to what was reasonably required when the work was performed, rather than what later proved unnecessary?

Chapter 4: Statements in Affidavits

The affidavits in this costs dispute became more than a record of what work was done. They became an arena where each side tried to control the label attached to that work.

The Applicant’s strategic affidavit posture leaned heavily on repeated “factual” language. This was not accidental. In costs law, labels can matter when they steer the taxing analysis: “fact gathering” sounds like a disbursement or support work; “opinion formation” sounds like expert work, which raises different rule constraints and different recoverability expectations.

The Respondent’s affidavit posture, in contrast, focused on substance rather than labels. The Respondent’s approach was: if the consultant analysed medical literature, combined that with medical records, and reached conclusions on causation, then the work is expert-like regardless of whether it is described as “factual findings”.

The Court also had to manage a further procedural reality: affidavits can illuminate, but they can also distract. When affidavit material becomes voluminous, repetitive, intemperate, or untethered from the real taxation questions, it does not merely waste time—it risks obscuring the precise inquiry a costs assessment requires.

Strategic intent behind procedural oversight of affidavits:

The Court’s procedural management in a taxation dispute serves a protective function. Taxations are not mini-trials about who worked hardest or who was most committed. They are controlled assessments about what is payable as between parties under a particular costs order. The Court’s directions and scrutiny aim to keep affidavit evidence focused on:

1. What was done;

2. Why it was done at the time;

3. How it fits within recoverable categories;

4. Whether time and rates were reasonable.

When affidavits wander into personal grievances or sweeping assertions of expertise, they can weaken rather than strengthen the very claim they are meant to support.

Chapter 5: Court Orders

Before the final resolution of this costs point, the Court’s procedural pathway involved:

1. Directions for filing affidavit material: The Court permitted the filing of multiple affidavits addressing the consultant’s work and fees, including a detailed schedule responding to objections item-by-item.

2. Joinder and later revocation: For a period, the consultant was joined as a party to address an allegation linked to unauthorised legal practice concerns. Once that allegation was abandoned, the Court revoked the joinder and refused leave for the consultant to be heard on the taxation.

3. Management of objections on taxation: The Court identified two overarching questions—recoverability in principle on the standard costs basis, and the rate—alongside the resolution of particular disputed items.

These procedural steps reflect a practical truth: once non-lawyer work is claimed as a large disbursement, taxation can become a contested, quasi-adversarial sub-proceeding where the Court must impose structure to preserve proportionality.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing in this matter was not about medical negligence. It was about costs, and more specifically, about the boundary between legitimate case preparation expenses and non-recoverable behind-the-scenes opinion work.

The cross-examination dynamic in a taxation dispute is usually less theatrical than a trial on liability. But the confrontation can be sharper, because it turns on credibility of billing narratives and the internal logic of tasks recorded.

Process Reconstruction: Live Restoration

The Applicant’s case required the Court to accept that retaining the consultant—and incurring a very large fee—was a reasonable and proper litigation step at the time. The Respondent’s case required the Court to look past the usefulness of the consultant’s work and ask a colder question: should the paying party be made to reimburse that work on a standard costs order?

This tension repeatedly surfaced in the logic of the submissions:

1. Utility does not equal recoverability: The Court emphasised that being helpful is not the test.

2. Substance over semantics: The Court confronted the attempt to reframe opinion work as “factual” work.

3. Duplication and proportionality: The Court measured whether the tasks duplicated solicitor/counsel labour and whether the recorded time was excessive.

Core Evidence Confrontation

The decisive evidentiary confrontation was the detailed schedule and affidavits describing the consultant’s tasks. The Court treated the schedule as the Applicant’s best opportunity to justify why each category should be recoverable. That document also exposed the risk: the more the schedule revealed tasks like extensive technical research and causation theorising, the more it looked like expert work in disguise.

The conflict thus turned on the nature of the work, not the sincerity of the effort.

Judicial Reasoning (with Judicial Original Quotation Principle)

The Court’s reasoning pivoted on identifying the true nature of the consultant’s work and applying the standard costs basis test of whether costs were reasonably incurred, meaning necessary or proper for the attainment of justice, judged without hindsight and by reference to the circumstances at the time.

“I have no doubt that [the consultant’s] 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.”

This statement was determinative because it separated emotional common sense from legal entitlement. Many litigants assume that if work was done, and it helped, the other side must pay. The Court rejected that shortcut. A standard costs order is not a blank cheque. It is a controlled reimbursement mechanism grounded in reasonableness and professional norms.

The Court then placed the taxation test in its proper doctrinal frame by drawing on established authority.

“[A] taxing officer in a party and party taxation should allow … a just and reasonable amount … where such item was, in fact, incurred … in respect of some step or matter … which either (1) was necessarily taken … for the attainment of justice … or, (2) although not necessarily taken … would reasonably have been taken … by a solicitor acting at the time … without extravagance … and … not … in conflict with … rules … practice … and the usages of the legal profession … [and] care must be taken not to be affected by … ‘hindsight’.”

This quotation mattered because it locked the analysis to a professional standard: what a diligent solicitor would reasonably have done at the time, without extravagance, consistent with professional usage. That lens makes it difficult to justify an extensive program of technical research by a lay consultant on medical causation, particularly where qualified experts were in fact retained and provided the expert evidence.

A further core reasoning passage addressed the Applicant’s semantic strategy.

“I have formed the view that the [Applicant] has sought to tailor the description of the work … so as to make it claimable … 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.”

This was determinative because the Court treated the language choices as part of the forensic contest and refused to let wording override substance. In costs disputes, the party claiming costs bears the burden of demonstrating reasonableness. If the description is engineered to fit recoverable categories, the Court will test it against what the work actually was.

Finally, the Court expressed a plain-language characterisation of what the affidavits showed.

“[W]hen [the consultant’s] 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 … medical records.”

This was determinative because it provided the bridge from evidence to conclusion: extensive research plus interpretation plus conclusions equals opinion work. On the Court’s view, that kind of labour was outside what the Respondent should pay on a standard costs basis, at least in the way it had been performed here.

Chapter 7: Final Judgment of the Court

The Court determined that the Respondent was liable for only a small part of the consultant’s claimed work on the standard costs basis.

The Court allowed only limited categories of work, taking a broadbrush approach:

1. Reading of medical records and preparation of a chronology: 75 hours

2. Drafting correspondence and other documents: 75 hours

3. Copying and collating documents: 75 hours

The Court made no allowance for a long list of other activities, including (in substance) technical research, expert-facing conferences, equipment-related exploration, discovery analysis, pleading work, advice on evidence, and expert-meeting travel.

As to rate, the Court rejected recovery at the consultant’s invoiced hourly rate. Instead, the Court allowed a rate consistent with the relevant non-lawyer scale items in South Australian costs scales over the relevant period, adopting a midpoint rate of AUD $166.90 per hour given the range applicable during the years of engagement.

The Court’s concluding direction was clear in principle: this taxation was not a referendum on whether the consultant was valuable to the Applicant. It was a ruling about what the Respondent must pay under a standard costs order.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This decision has jurisprudential value well beyond its immediate setting because it illustrates a disciplined boundary-setting function in costs law:

1. It reaffirms that standard costs orders are anchored in professional norms and reasonableness, not in subjective value or effort.

2. It highlights a recurring modern litigation risk: the rise of non-lawyer consultants operating in grey zones between investigation, paralegal work, expert analysis, and quasi-legal drafting.

3. It demonstrates a judicial unwillingness to let semantic relabelling convert non-recoverable opinion work into recoverable “facts”.

4. It shows how courts can avoid unnecessary definitional battles (such as whether someone is a “shadow expert”) when the determinative inquiry is the nature of the work and its reasonableness as between parties.

This is a practical ruling for anyone funding complex litigation: the Court will protect the paying party from being charged for elective, duplicative, or professionally abnormal expenditure, even where the successful party genuinely believed the expenditure assisted.

Judgment Points

1. The standard costs basis focuses on “reasonably incurred” costs, not on subjective utility.

2. The assessment must be made without hindsight and by reference to what a diligent solicitor would have done at the time.

3. The Court will examine substance over labels where a party attempts to describe opinion work as “factual” work.

4. Work that duplicates solicitor and counsel labour will tend to be disallowed as against the paying party.

5. Extensive technical research by a lay consultant on medical causation is not ordinarily recoverable as between parties on a standard costs order.

6. Even where some categories are allowable (chronologies, document handling), the hours and rates must remain proportionate and aligned with appropriate scale rates for non-lawyer work.

Legal Basis

The legal foundation applied by the Court included:

1. The definition and operation of the “standard costs basis” under the Uniform Civil Rules 2020 (SA), including the concept that costs must be shown to be reasonably incurred, determined by reference to the relevant costs scale in force when incurred.

2. The long-standing party-party taxation principles articulated in:

• Bligh v Tickle Industries Pty Ltd (1958) Qd R 121, establishing the “necessary or proper for the attainment of justice” test for whether costs were reasonably incurred.

• W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527, expanding the test and emphasising the “office chair” perspective and the need to avoid hindsight, and to ensure the step is one that a solicitor would reasonably have taken without extravagance and consistent with professional practice.

1. The Court’s use of South Australian costs scales for non-lawyer work (pre- and post-Uniform Civil Rules 2020 (SA)) to determine an appropriate hourly rate for allowable categories.

2. The Court’s recognition of, but decision not to resolve, the conceptual relevance of “shadow experts” as defined by r 74.13 of the Uniform Civil Rules 2020 (SA), because the Court found it unnecessary to decide that label to resolve the taxation outcome.

Evidence Chain

This case is a textbook example of “Conclusion = Evidence + Statutory Provisions / Rules” in a costs context.

1. Evidence: invoices showing very large hours across categories including research, summaries, cross-referencing, and other tasks; affidavit descriptions of tasks; schedule commentary seeking to justify each item.

2. Rules: standard costs basis requires reasonableness; scales define allowable rates for non-lawyer assistance; party-party authorities define necessary/proper.

3. Judicial evaluation: the Court identified duplication, excessive time, and work of a kind that should have been performed by qualified experts (where expert opinion was needed) or by legal practitioners (where legal drafting was required), rather than by a lay consultant.

4. Outcome: broadbrush allowance confined to limited clerical-type categories at scale-consistent rates; disallowance of research and a wide range of tasks.

Judicial Original Quotation

The following core dicta crystallised the determinative reasoning.

“I have formed the view that the [Applicant] has sought to tailor the description of the work … so as to make it claimable … 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.”

Why it mattered: It is a warning to practitioners that drafting a costs narrative is not merely administrative. If the narrative appears engineered, it can damage credibility and invite the Court to apply a stricter substance-based analysis.

“[W]hen [the consultant’s] affidavits are stripped back to plain language, it can be seen that his work amounted to voluminous research resulting in the expression of opinions …”

Why it mattered: This sentence provided the classification key. Costs recoverability often turns on classification. Once the Court classified the work as opinion-driven research, the bridge to disallowance followed naturally under the reasonableness test.

“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.”

Why it mattered: This is the sharpest practical guidance in the decision. It signals that courts will not ordinarily shift the cost of lay technical self-education onto the paying party under a standard costs order.

Analysis of the Losing Party’s Failure

The losing party in this taxation contest failed for reasons that are common and avoidable:

1. Overreach in scope: The claim pushed too much of the consultant’s work into recoverable territory, including categories that looked like expert analysis and legal work.

2. Overreliance on utility: The argument leaned heavily on “it helped” and “it saved money compared to multiple experts”, which did not meet the recoverability test as between parties.

3. Semantic framing risk: The repeated “factual” label strategy drew judicial scepticism, and the Court concluded the descriptions were tailored rather than naturally descriptive.

4. Insufficient proportionality: The hours claimed for various tasks appeared excessive. Even allowable categories were trimmed by broadbrush allocation.

5. Misalignment with professional norms: The Court evaluated what a diligent solicitor would reasonably do. Outsourcing extensive medical causation research to a lay consultant, in the presence of multiple retained experts, sat outside that norm.

Key to Victory

The successful party in this costs dispute prevailed by keeping the argument anchored to principle:

1. Frame the test correctly: standard costs basis requires reasonable incurrence, not subjective value.

2. Attack classification: show the work was, in substance, opinion-driven research and quasi-expert analysis.

3. Highlight duplication: demonstrate overlap with solicitor/counsel tasks and the unreasonableness of charging the paying party multiple times for similar labour.

4. Pin down proportionality: emphasise excess hours and extravagant scope.

5. Offer a workable alternative: accept that some clerical-type work may be allowable, but at a proper scale rate, which makes the Court’s job easier.

Reference to Comparable Authorities

Bligh v Tickle Industries Pty Ltd (1958) Qd R 121

Ratio summary: Costs are reasonably incurred if they were necessary or proper for the attainment of justice in the action. This supports the foundational “necessary or proper” criterion applied in party-party style assessments.

W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527

Ratio summary: A taxing officer should allow a just and reasonable amount for each item where the step was necessary for the attainment of justice or would reasonably have been taken by a solicitor acting at the time without extravagance, consistent with professional usage, and the assessment must avoid hindsight by adopting the “office chair” perspective.

Implications

1. Even when you win, you do not automatically recover every dollar you spent. A standard costs order is designed to reimburse reasonable litigation costs, not to refund every strategic choice.

2. If a task looks like expert work, treat it like expert work. Courts tend to be sceptical when technically complex opinion work is performed by a lay consultant and then presented as “facts”.

3. Costs are judged through the lens of professional reasonableness. Ask: would a diligent solicitor, acting without extravagance, have done this step in this way at this time?

4. Document management work is recoverable only up to a point. Chronologies and collating are often allowable, but hours and rates must remain proportionate.

5. Precision and restraint are persuasive. In taxation disputes, the party who concedes what is truly non-recoverable and focuses on what is defensible often earns credibility and a better outcome.

Q&A Session

Q1: If a consultant genuinely improved the case outcome, why can the Court still disallow the fee?

A: Because the standard costs basis asks whether the cost was reasonably incurred as between parties, not whether it helped. A paying party is not required to underwrite every decision the successful party made, particularly where the step sits outside professional norms or duplicates other work.

Q2: Does this mean parties should never use non-lawyer consultants in complex litigation?

A: No. Parties may retain consultants if they consider it commercially sensible. The key point is that the choice may remain a solicitor-client expense rather than a recoverable party-party expense, especially where the work crosses into opinion formation, expert analysis, or legal drafting.

Q3: What is the practical safest way to maximise recoverability of preparation work?

A: Keep recoverable work within recognisable categories (chronologies, document handling, factual investigation), keep time and rates proportionate, avoid duplication with lawyers, and where technical opinion is required, retain appropriately qualified experts under the applicable rules.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Civil Litigation Costs Taxation — Recoverability of Non-Lawyer Consultant Fees as Disbursements (Standard Costs Basis)

Judgment Nature Definition: Final Judgment on a discrete taxation question (costs assessment issue following settlement)

2. Self-examination of Core Statutory Elements

[Execution Instruction] Based on the case type, display the corresponding core legal test standards one by one. Each step must be written in great detail, with complete references, leaving no legal loopholes, and must be rigorous. These are for reference only; do not make absolute statements and must be combined with the specific content of this case.

⑨ Civil Litigation and Dispute Resolution

Core Test: Has the Limitation Period expired? Does the Court have Jurisdiction over the matter? Has the duty of Discovery/Disclosure of evidence been satisfied?

Step-by-step practical test standards (tailored to the present case subtype: taxation of costs on the standard costs basis):

1. Identify the costs order and its basis

• Confirm whether the order is on the standard costs basis (party-party analogue) or indemnity basis.
• On the standard costs basis, the receiving party tends to be required to demonstrate that claimed costs were reasonably incurred and are reasonable in amount, assessed by reference to the relevant scale and the governing procedural rules.

1. Identify the item classification

• Determine whether the item is a professional fee (solicitor/counsel), a disbursement (out-of-pocket expense), or a non-lawyer service cost.
• Determine whether the non-lawyer cost is properly characterised as:
  • clerical/paralegal-type assistance (chronologies, copying, collating);
  • factual investigation (witness locating, factual verification);
  • expert-type work (technical research, opinion formation);
  • quasi-legal work (drafting pleadings, legal correspondence).
• Classification is crucial because recoverability often depends on whether the work is of a kind reasonably undertaken as part of litigation preparation within professional norms and the relevant rules.

1. Apply the “reasonably incurred” test (standard costs basis)

• Apply the “necessary or proper for the attainment of justice” test, noting it is not limited to what was strictly indispensable.
• Apply the “reasonable solicitor” test: would a diligent solicitor have reasonably incurred this cost at the time, without extravagance, consistent with:
  • the rules of court;
  • court practice;
  • professional usages in comparable litigation.

1. Apply the “office chair” and “no hindsight” discipline

• Assess the decision ex ante: what was known or reasonably knowable when the expenditure was incurred?
• Avoid judging the step unreasonable merely because later events made it unnecessary.
• However, even on an ex ante view, ask whether the step’s nature and scale remained within reasonable bounds for the kind of litigation.

1. Proportionality and duplication analysis

• Proportionality: is the time spent or scope of work in balance with the complexity and needs of the case?
• Duplication: does the item replicate work already performed (or properly to be performed) by solicitors, counsel, or retained experts?
• Duplication tends to be treated as not reasonably recoverable as between parties on a standard costs basis, particularly where the paying party would effectively fund multiple people doing the same task.

1. Rate assessment by scale and role

• If the item is allowable in principle, determine the proper rate by:
  • the applicable costs scale in force when the work was performed;
  • the correct classification of the worker (non-lawyer, clerk, paralegal, investigator).
• Where the worker is not a qualified legal practitioner or expert, courts tend to align rates to scale items for non-lawyer work rather than to bespoke invoiced “consultant” rates, unless there is a clearly justified and rule-consistent basis.

1. Shadow expert and expert-assistance issues (where relevant)

• If the work resembles technical expert assistance used to help prepare the case (rather than evidence for the Court), examine the applicable rules about experts and any “shadow expert” concept.
• Consider whether the rules contemplate the engagement and whether costs are ordinarily recoverable as between parties on the standard costs basis.
• Even where the label is contested, focus on the substance: research leading to technical conclusions about causation tends to attract scepticism if performed by a lay person rather than a qualified expert.

1. Broadbrush allowances and item-by-item scrutiny

• Taxations can be conducted by detailed item analysis, but courts may adopt a broadbrush approach where the volume is high and the issue is principally categorical.
• A broadbrush outcome still rests on a reasoned linkage between evidence (invoices and schedules), rules, and professional norms.

3. Equitable Remedies and Alternative Claims

[Execution Instruction] The AI must, based on the case circumstances, analyse whether the parties can utilise principles of Equity or other Common Law doctrines to launch a “counter-attack” when statutory law is inapplicable. This section must be highly detailed, identifying feasible alternative paths when statutory avenues are exhausted.

In a costs taxation setting, the “counter-attack” is not typically an equitable claim in the substantive sense. However, equitable and common law principles can still influence litigation strategy and settlement posture in the costs arena through the following pathways.

1. Equitable-style argument: substance over form

• Core idea: Courts of equity historically look at the substance, not the label. Costs courts similarly resist semantic relabelling.
• Tactical use: If the other party’s claim depends on engineered descriptors, a responding party can argue that the true nature of the work should govern recoverability, not the chosen language.

1. Unjust enrichment analogy (limited practical utility)

• Although a standalone unjust enrichment claim is not the mechanism in taxation, an analogy sometimes appears in negotiation: “You benefited from our preparation; you should pay.”
• Practical warning: On a standard costs basis, this line of reasoning tends to be weak. The paying party’s obligation comes from the costs order and the rules, not from a free-standing “benefit” principle.

1. Procedural fairness within the taxation process

• If a party is confronted with voluminous material, shifting categories, or late-filed schedules, they may raise procedural fairness concerns within the taxation directions.
• The Court may respond by:
  • confining issues;
  • requiring clearer schedules;
  • refusing leave for irrelevant or scandalous material;
  • limiting evidence to what is necessary to determine recoverability.

1. Alternative common law doctrine: mitigation and reasonableness

• Costs reasoning often tracks a mitigation-style expectation: parties should not incur extravagant or duplicative costs at the other side’s expense.
• Tactical use: argue that reasonable alternatives existed:
  • use qualified experts for technical opinion;
  • use in-house clerical support for chronologies;
  • avoid duplicative attendance at conferences.

1. If a standard costs claim fails: strategic reframing options (non-absolute)

• Consider whether some parts can be reframed as:
  • solicitor time rather than disbursement, if the work was supervised and integrated into legal tasks, and the scale permits it;
  • recoverable clerical/paralegal assistance at scale rates rather than consultant rates;
  • limited, discrete factual investigation (for example, obtaining records or verifying factual sequences) rather than opinion-driven research.
• Risk warning: Courts tend to test reframing efforts carefully. Reframing that looks artificial tends to be determined unfavourably.

4. Access Thresholds and Exceptional Circumstances

[Execution Instruction] Reveal the “Hard Thresholds” of the case type and identify all “Exceptional Exemptions.”

Regular Thresholds (hard indicators in costs taxation disputes):

1. Basis of costs order

• Standard costs basis: tends to be narrower; the receiving party must show costs were reasonably incurred and are reasonable in amount.
• Indemnity basis: broader recovery may be permitted, but still subject to reasonableness constraints.

1. Scale anchoring

• Costs are ordinarily assessed by reference to the relevant scale in force when incurred.
• Claims that depart materially from scale rates often attract close scrutiny, particularly for non-lawyer work.

1. Recoverability of non-lawyer technical opinion work

• Work that is essentially expert opinion preparation, particularly by non-qualified persons, tends to be determined as not recoverable on a standard costs basis.
• Extensive self-education research by a lay person tends to be treated as non-recoverable as between parties.

1. Duplication threshold

• Where multiple professionals perform overlapping tasks, duplication tends to be disallowed on a standard costs basis.

Exceptional Channels (situations that may justify broader allowances, expressed non-absolutely):

1. Truly unusual case complexity coupled with demonstrated efficiency gains

• If a non-lawyer’s involvement demonstrably reduced solicitor/counsel time, and the work remained within permissible categories, a court may be more receptive to allowing limited categories at appropriate rates.

1. Clear factual investigation that substitutes for professional time without crossing into opinion work

• If the work involves retrieving hard-to-obtain records, verifying factual sequences, locating witnesses, or similar tasks, allowance may be available where properly evidenced and proportionate.

1. Prior directions or agreements influencing recoverability

• If there was a prior costs agreement, direction, or accepted practice between the parties concerning such expenses, recoverability arguments may strengthen. Absent such a feature, courts tend to return to the baseline rules and professional norms.

Suggestion: Do not abandon a potential costs recovery claim simply because a large portion appears vulnerable. Carefully segment the work into defensible categories, align rates to the scale, and avoid overreach. Overreach tends to be determined unfavourably and can reduce the credibility of even the valid parts of the claim.

5. Guidelines for Judicial and Legal Citation

Citation Angle:

It is recommended to cite this case in legal submissions or debates involving:

1. The recoverability of non-lawyer consultant fees as disbursements on the standard costs basis.

2. The approach to semantic relabelling and substance-based classification in taxation.

3. The proper application of the “necessary or proper for the attainment of justice” and “office chair / no hindsight” principles in costs assessment.

Citation Method:

As Positive Support:

• When your matter involves a costs dispute where a successful party claims large fees for a consultant’s research and technical analysis, citing this authority can strengthen an argument that such work is not reasonably recoverable on the standard costs basis, particularly where it resembles expert opinion work or duplicates solicitor/counsel functions.

As a Distinguishing Reference:

• If the opposing party cites this case to resist paying consultant fees, you should emphasise any uniqueness in your matter, such as:
  • the consultant’s work being confined to discrete factual investigation and document management;
  • absence of technical opinion formation;
  • demonstrable reduction in solicitor/counsel time;
  • proportionate hours and strict adherence to scale rates;
  • clear supervision and integration into permissible litigation tasks.

Anonymisation Rule:

Do not use the real names of the parties; strictly use professional procedural titles such as Applicant / Respondent.

Conclusion

This decision shows the real operating rule behind standard costs orders: the Court reimburses reasonable litigation steps, not every strategic preference. Where a claimed disbursement is driven by extensive lay technical research and opinion formation, the risk of disallowance is relatively high, especially if the work duplicates what lawyers and qualified experts ordinarily do.

Golden Sentence: Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of South Australia (Applicant v Respondent (No 4) [2025] SASC 5), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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