In place of order (5) made on 5 July 2016 (but not entered) the Court makes the following order:

(5)   Order that the appellant’s solicitor –

(a)   not charge his client with more than 50% of the costs and disbursements associated with preparing the Blue appeal books;
(b)   to the extent that such costs or disbursements have already been paid or might be paid in the future, reimburse the client for that amount; and
(c)   give the client written notification of the terms of this order.

Insurance Australia Ltd t/a NRMA Insurance v Milton (No 2) [2016] NSWCA 173

 

13 That said, the immediate issue is the selection of documents for inclusion in appeal books. Where a document has not been relied on or referred to by any party at first instance, nor by the primary judge, and is not sought to be relied on by the appellant on appeal, it is not a document which should be included in the appeal books. It is self-evident that it is not “relevant and necessary”.

 

14 This Court’s reasons on the appeal observed that it was clear prior to the commencement of the hearing before the primary judge that neither party proposed to rely upon any of the documents exhibited to the affidavit, save for a small minority, and the primary judge indicated (with the parties’ acquiescence) that he would not rely on documents to which he had not been taken. There could be no doubt that thousands of pages of documents were reproduced which were neither relevant nor necessary for the determination of the appeal. That excess was coupled with the failure to include in the appeal books the very decision from which judicial review had been sought, being the document which, above all others, was relevant and necessary.