Lawyers’ Obligations as to Content of Tender Bundles of Affidavits, Exhibits and Legislation/Authorities

This issue – no doubt at the forefront of the minds of our many judicial colleague readers – was pointed up in the recent decision in Bevan v Bingham [1923] NSWSC 19 (7 February 2023).  That – perhaps extraordinarily in terms of the issue at hand – was a dispute between a barrister and a solicitor concerning recovery of fees by the latter against the former.  Bellew J wrote:

[3]          Prior to the hearing, the plaintiff’s solicitor filed with the Court:

(1)          3 volumes of documentary material labelled “Court Book”, extending to more than 900 pages;

(2)          2 further volumes labelled “Plaintiff’s tender bundle”, extending to a further 520 pages; and

(3)          3 further volumes labelled “Plaintiff’s bundle of authorities – Legislation and extrinsic materials cited in oral argument”, extending to what I estimate was in excess of 1,200 pages.

[4]          In the course of reading the material prior to the hearing, it became increasingly apparent that there was a considerable degree of duplicity within it. I also formed the preliminary view that much of it seemed surplus to what appeared would be likely to be necessary in order to allow the issues between the parties to be considered and determined.

[5]          These preliminary views and impressions were confirmed at the outset of the hearing when senior counsel for the plaintiff, in response to observations made by me about the amount of material which had been filed, commented that “not very much of it matters”.  Senior counsel for the first defendant took a similar view , before observing that I would “never have to read the whole of the material”.   Subsequently, senior counsel for the plaintiff candidly acknowledged that there was “not only too much material, there (was) a duplication of it,”  to the point where I could “ignore the tender bundles”. 

[6]          These various observations beg the obvious question, although in saying that I emphasise that I level no criticism whatsoever towards senior counsel for the plaintiff, or senior counsel for the first defendant. Their respective assessments of the material, and the relevance of much of it, were completely in accordance with my own. I accept that neither had any input into this aspect of the preparation of their respective cases. Nevertheless, a number of matters need to be emphasised.

[7]          To begin with, when preparing any proceedings for hearing there is a fundamental obligation upon all legal practitioners to give careful consideration to, and to identify, the evidence which is necessary to put before the Court to allow the issue(s) to be determined:  See Insurance Australia Limited t/as NRMA Insurance v Milton [2016] NSWCA 156; (2016) MVR 78 at [67] and the authorities cited therein; Insurance Australia Limited t/as NRMA Insurance v Milton (No 2) [2016] NSWCA 173 at [24];.  That obligation was not discharged by the plaintiff’s solicitor in the present case. In SDW v Church of Jesus Christ of Latter-Day Saints: [2008] NSWSC 1249; (2008) 222 FLR 84 at [35] – [36].  Simpson J (as her Honour then was) made a number of observations which are particularly apt:

[35] To my observation, it has become too common a practice for legal practitioners to produce to the court copies of every document that has come into existence associated with the facts the subject matter of the litigation. It denotes, at best, the exercise of no clinical legal judgment and the abdication of the responsibility that lies upon legal practitioners to apply thought and judgment in the selection of the material to be presented to the court. A common example is the photocopying and presentation of hospital files, from which every page is reproduced, and copied multiple times – documents such as histology reports, x-ray reports, nursing notes, and quite irrelevant charts and print outs of complex investigations. This case is no different. The costs to the parties are astronomical. The practice casts immense burdens on the legal representatives of the opposing party, who are obliged to read all of the material, further increasing the costs.

[36] The practice must cease. If legal representatives will not voluntarily accept the responsibility of making appropriate selections of the material to be put before the court, then judicial officers must act to ensure that they do. One appropriate sanction, in cases of excess, is an order that, no matter what the outcome of the proceedings, no costs be recoverable from the losing party in respect of the excess, and, further, no costs be recoverable by the solicitor from the client for the excessive copying. I propose to make such an order.

[8]          The plaintiff’s solicitor engaged in the common practice to which her Honour referred. He failed to exercise the requisite clinical legal judgment, and he abdicated his responsibility to determine what evidence was actually necessary to allow the issue(s) to be determined. It is self-evident that the costs incurred in preparing such material, and the costs incurred as a result of counsel for each party having to read it, would have been significant. It is sadly ironic that all of this occurred in a case concerning costs of $349,360.00 which are said to be owing to a legal practitioner, in circumstances where it was originally estimated that such costs would be $60,000.00.

…

[10]        I should also note that of the 32 authorities which were copied and provided to me, I was taken to 2 in the course of oral argument.

[11]        I am simply left to reiterate that the practice of burdening the Court with extraneous and unnecessary material is unacceptable.  That is particularly so in a case such as the present where, as will be evident from the summary which follows, the facts are in relatively short compass, and where the primary issue for determination, although not without its complications, is essentially a narrow one.

(emphasis added)