July 6, 2016
- LEEMING and SIMPSON JJA: We agree that the appeal must be dismissed with costs for the reasons given by Basten JA. We wish to add some observations concerning the costs of this appeal.
- The appellant provided to the respondent and the Court an enormous appeal book. For example, the Blue books came in four volumes totalling 2094 pages, including the 21 page index reproduced at the beginning of each volume. It seems likely that at least ten sets of those books were prepared (the rules provide for the service of three copies and the filing of four copies: UCPR, r 51.32(2) and (3), and copies will have been required for senior and junior counsel retained by the appellant insurer). In light of the following, the waste in that course may fairly be described as extravagant.
- First, no reference at all appears to have been made to any document within volumes 1, 2 or 4 of the Blue books.
- Secondly, the appellant had identified at the outset of the hearing before the primary judge that it was able to identify the particular documents to which reference would be made. They were few. Nevertheless, all ended up being tendered because, as counsel for Mr Milton observed, it would probably take longer to deal with objections. The primary judge indicated, appropriately, and with the acquiescence of the parties, that he would not roam through documents to which he had not been taken.
- In these circumstances, we find it difficult to envisage any occasion for the reproduction of (literally) thousands of pages on appeal. At no stage in the history of this litigation, at first instance or on appeal, does it appear that a party referred to a single document in volumes 1, 2, or 4 of the Blue books. Most of the thousands of pages reproduced in the Blue books were documents which all parties agreed were not relevant to any submission at trial and on which the primary judge said he would not rely. This is not a case where it would cost more money in order to select the documents relevant and necessary to determine the appeal in accordance with r 51.29(1)(b); cf Lipman Pty Ltd v Emergency Services Superannuation Board  NSWCA 163 at ; the documents had been identified in the written submissions served prior to the hearing at first instance.
- Thirdly, and indicative of the lack of compliance with the obligation to identify the documents relevant and necessary for the hearing and determination of the appeal, the original decision of the assessment panel was not included in the evidence at all, and the decision of the review panel, the very decision from which judicial review was sought, did not appear in any of the Blue books and needed to be supplemented, late, in the Orange book.
- The failure to include the critical documents recording the decision challenged by the appellant was all the more remarkable given that the course taken by the solicitor on the record for the appellant was to swear an affidavit exhibiting 279 documents, about none of which was any testimonial evidence given whatsoever.
- There is in our view no occasion for either party to bear the costs of preparing the appeal books. This is not the first time that the same solicitor acting for an insurer has adopted the course of causing thousands of pages needlessly to be photocopied for judicial review proceedings of this nature: see for example Ali v AAI Ltd  NSWCA 110 at -. In SDW v Church of Jesus Christ of Latter-Day Saints  NSWSC 1249; 222 FLR 84, reference was made by one of us at  to “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”. It was said at  that in such cases:
“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.”
- Senior counsel for the appellant obtained instructions, when the Court raised concern about what had occurred, that “we are not, whatever happens, going to seek costs for preparing the Blue books”. We agree; even had the appellant been successful, Mr Milton should not have had to bear the costs of preparing the Blue books. But as presently advised there would appear to be no occasion for either party bearing those costs.
- The point raised during the hearing was “is it right that, whatever the outcome of the appeal, [either] party have to bear the costs, which must be quite substantial, of that photocopying?” The instructions obtained in response fell short of an unequivocal undertaking by the solicitor acting for the appellant in relation to charging his client. We find it hard to conceive of circumstances when the appellant should have to pay the solicitor-client costs and disbursements of the preparation of thousands of pages which its lawyers might be expected to have advised need not and should not have been copied. Those costs may have been incurred without reasonable cause, and in circumstances for which the solicitor is responsible under s 99(1)(b) of the Civil Procedure Act 2005 (NSW).
- The limited assurance provided at the hearing suggests the possibility that the position was not made sufficiently clear. Accordingly, we propose that the appellant’s solicitor be given 14 days to supply, if he so chooses, submissions why an order should not be made that none of the costs and disbursements associated with photocopying the Blue appeal books should be billed to his client, and to the extent that such costs or disbursements have already been paid or might be paid in the future, that the client receive a refund. Power to make such an order may be found in either or both of s 99 of the Civil Procedure Act and the supervisory jurisdiction with respect to legal practitioners: see Re Felicity; FM v Secretary, Department of Family and Community Services (No 4)  NSWCA 19 at - and .