Jeffreys and Bosnic (No 2)

In *Jeffreys and Bosnic (No 2)*, the Supreme Court of Victoria was asked to determine whether a party, who had been successful in a proceeding, was entitled to recover the costs of an expert witness whose evidence was ultimately not relied upon by the court. The dispute arose from a prior proceeding where the plaintiff, Jeffreys, had been awarded damages against the defendant, Bosnic. Following this success, Jeffreys sought to recover the costs associated with engaging an expert witness, Dr. G. L. Davies, whose report and attendance at trial were ultimately not used by the court in its final determination.

The central legal issue before Cronin J was whether the costs of an expert witness, whose evidence was not ultimately relied upon by the court, could be considered "reasonably incurred" for the purposes of a costs order. This required an examination of the principles governing the recovery of expert witness costs, particularly where the expert's evidence, though prepared and made available, did not form part of the court's ultimate reasoning or decision.

Cronin J held that the costs of an expert witness are recoverable if they are reasonably incurred, even if the expert's evidence is not ultimately relied upon by the court. The judge reasoned that a party is entitled to prepare their case thoroughly, which includes obtaining expert advice and reports. The reasonableness of incurring such costs should be assessed at the time the costs were incurred, not with the benefit of hindsight. In this instance, the engagement of Dr. Davies was a reasonable step in preparing the plaintiff's case, and the costs were therefore recoverable. The court ordered that the plaintiff was entitled to recover the costs of Dr. Davies.