Australia, Aug. 19 -- New South Wales Land and Environment Court issued text of the following judgement on July 18:

1. HER HONOUR: By motion filed on 8 July 2025, the plaintiffs (AMP) sought to present evidence of the contents of some 395 lever-arch folders of documents in the form of a summary under s 50 of the Evidence Act 1995 (NSW).

2. The admissibility of the summary was disputed by the 28 defendants (the insurers), who are legally represented in four groups: the first and second defendants (Chubb), the third and co-represented defendants (AIG), the ninth and co-represented defendant (Allianz) and the tenth and co-represented defendants (Lloyd's).

3. Since the motion was filed, some progress has been made:

a) AMP has revised the proposed s 50 summary, in an effort to address various matters raised by the insurers.

b) More significantly, AMP has identified specific documents in the 395 lever-arch folders which it seeks to tender, reducing the proposed tender to some 16 lever-arch folders.

c) The insurers have agreed that they will not submit that AMP has failed to discharge its burden of proof in relation to the occurrence of an omission on the basis that AMP has not tendered the whole file, albeit the insurers do not thereby admit the fact of the alleged omission.

4. To explain, the last-mentioned 'piece of progress' deals with AMP's proposed tender of an entire client to prove a negative, being that no advice was given. The insurers, effectively, accept that it is not necessary to do this. Given the insurers' agreement to this course, AMP now rely on the first portion of the summary (Item 1) as an aide memoire only.

5. As to whether the balance of the revised s 50 summary should be admitted, AMP relied on the evidence of solicitor Katharine Cahill. Lloyd's relied on the evidence of solicitor Craig McIver. Additional legal correspondence was tendered. I was also provided with one of the many client files sought to be summarised, to illustrate the task undertaken.

Section 50, Evidence Act

6. Section 50 of the Evidence Act provides:

50 Proof of voluminous or complex documents

(1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.

(2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has-

(a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary, and

(b) given each other party a reasonable opportunity to examine or copy the documents in question.

(3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.

7. Section 47(1) of the Evidence Act defines "document in question" as "a document as to the contents of which it is sought to adduce evidence".

8. A 'summary' for the purposes of s 50 need not summarise the entire contents of the documents in question but the evidence sought to be extracted from the documents: In the matter of Great Southern Managers Australia Ltd v Gunns Plantations Ltd [2011] VSC 380: at [67] (Davies J). But a summary may not meet the requirements of s 50 if it interprets the contents of the underlying documents, involves the application of an exercise of judgement, is a submission or gives expert opinion: In the matter of Idylic Solutions Pty Ltd v Hobbs [2012] NSWSC 568 at [83], [91], [97] and [102] Ward J (as the President then was).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1981c33df1ddf7dcc4439470)

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