1 LE MIERE J: The court directed the parties to take steps to compile a book of documents to be tendered at trial. On 2 February 2010 the plaintiffs' solicitors filed and served a book of documents. The defendant's solicitors complained that the book did not comply with the court's directions and should be recalled. In turn, the plaintiffs' solicitors asserted that the defendant had failed to comply with the court directions in relation to the preparation of the trial book. On 4 March 2010 a registrar made directions that the book of trial documents be recalled and the parties exchange submissions in relation to the costs incurred in preparing and reviewing the book filed on 2 February 2010. I have subsequently taken over the case management of this file. These are my reasons for determining who should bear the costs incurred in preparing and reviewing the bundle of documents filed on 2 February 2010.

Initial directions for preparation of trial bundle

2 On 20 August 2009 a registrar made case management directions in relation to the preparation of a book of documents to be tendered at the trial. On 8 October 2009 a registrar made orders extending the time for various steps to be taken in relation to the preparation of the book of documents. The orders followed the conventional form providing that each party inform the other of which documents it intends to tender at trial and then each party advise the other which of the specified documents may be tendered by consent. On 4 November 2009 the plaintiffs' solicitors forwarded to the defendant's solicitors 'a list of all discovered documents indicating which of those documents the plaintiffs intend to tender at trial' and requested that the defendant's solicitors provide a list of documents which the defendant intends to tender at trial. There were further communications between the parties concerning documents and on 7 December 2009 the parties forwarded to the court a memorandum of consent orders consenting to the order previously made in relation to a book of documents being vacated and replaced by the following orders:

1. No later that 8 December 2009, each party will by notice in writing to each other party, specify the documents it intends to tender at the trial, and if inspection be directed, where the documents may be inspected.
2. No later than 18 December 2009, each party will advise each other party in writing which of the specified documents may be tendered by consent, and whether the authenticity of any of the remaining documents (specify which) is disputed and give reasons in writing as to why consent to tender the remaining documents is withheld.
3. No later than 22 January 2010, the plaintiffs will deliver to the listing co-ordinator a book or book of documents containing legible copies of each of the documents to be tendered at the trial by the parties and shall deliver a copy of the book or copies of the books of documents to the defendant.

On 11 December 2009 a registrar made orders in terms of the memorandum of consent orders.

3 The plaintiffs seek an order 'that their costs thrown away by reason of the defendant's conduct (or lack thereof) in the preparation of the trial bundle be fixed and payable by the defendants forthwith'. The plaintiffs claim costs of $49,469.50.

4 The plaintiffs say that the defendant was tardy and refused to comply with the orders of the court of 11 December 2009. They submit that the usual position is that the non-defaulting party should receive their costs thrown away due to the conduct of the defaulting party in non-compliance with the orders made. In effect, the plaintiffs say that the costs thrown away were thrown away by reason of the failure of the defendant to comply with the orders of 11 December 2009.

5 The defendant opposes an order that it pay the plaintiffs' costs thrown away and submits that the plaintiffs should pay the defendant's 'costs thrown away for reviewing and responding to the bundle' in the sum of $19,482.74.

6 The defendant submits that the book of documents, or trial bundle, filed by the plaintiffs was deficient because it:

(a) only contained documents to be tendered by the plaintiffs, with the exception of 9 documents the defendant had on 10 December 2010 provisionally advised the plaintiffs it wished to tender;

(b) did not include around 80 documents the defendant had on 10 December 2010 provisionally advised the plaintiffs it wished to tender;

(c) was not separated into a consent bundle, and a bundle of documents for which consent had not been given;

(d) did not contain a complete index of all the documents;

(e) contained documents that had no document number or other type of document identifier;

(f) contained documents that were not relevant to any matter in issue in the proceeding. The defendant estimates that around 30% of the documents in the trial bundle were not relevant to any matter in issue;

(g) was filed and served by the plaintiffs on the basis that it contained documents that the parties had consented to tender, however the defendant had not consented to the plaintiffs tendering any of the documents;

(h) contained documents that the plaintiffs had not previously indicated to the defendant they wished to tender;

(i) contained documents that had not been discovered by the plaintiffs;

(j) contained documents that the defendant had not previously been provided with copies of by the plaintiffs.

7 The defendant further submits that the plaintiffs acted prematurely in filing and serving the trial bundle because:

(a) The defendant had advised the plaintiffs that there were problems with the numbering of the index.

(b) The trial bundle was filed and served before the defendant had provided further discovery (which the plaintiffs were aware the defendant was going to provide).

(c) The trial bundle was filed and served before subpoenas to produce documents were issued by the plaintiffs.

(d) The defendant proposed to the plaintiffs that there be an extension of the milestones relating to the trial bundle on 8 January 2010.

(e) The defendant had requested the court to relist the matter for a status conference on 20 January 2010. The plaintiffs were sent a copy of the letter from Blake Dawson to the Supreme Court. Further, the plaintiffs were aware that at the status conference the defendant intended to request the court to deal with, among other things, outstanding issues relating to the trial bundle.

(f) The plaintiffs had advised the defendant that they would formally discover some documents that were handed to Edwina Jones of Blake Dawson. These documents had not been discovered when the trial bundle was filed.

(g) The defendant requested copies of documents from the plaintiffs' supplementary discovery on 1 February 2010. Copies of these documents were not provided by the plaintiffs before the trial bundle was filed. The plaintiffs provided the defendant with copies of documents from the plaintiffs' supplementary discovery on 4 February 2010, after the bundle had already been filed.

(h) The defendant requested that the plaintiffs discover additional documents referred to in document 16 of the supplementary discovery on 2 February 2010. The plaintiffs did not respond to this request until 4 February 2010, after the trial bundle had already been filed.

8 Both parties seek 'costs thrown away'. The term 'costs thrown away' is not defined in the rules. An order for costs thrown away means that the beneficiary of the order receives the costs incurred for work done but wasted as a result of the other party's error or failure to comply with the procedure set by the rules: Dal Pont GE, Law of Costs (2nd ed), [1.23]. Quick on Costs at [1.1230] says:

The costs thrown away are such costs as the taxing officer determines have in the circumstances of the case been reasonably incurred and related to work done which has been wasted as a result of the successful application ...Costs attributable to work useful for the ongoing conduct of the substantive proceedings are not costs thrown away. Costs thrown away are costs incurred which must be incurred a second time for the purpose of a trial in the future.

9 The plaintiffs claim that they did work and incurred disbursements in preparing the first trial bundle which has been wasted because they have to prepare a second trial bundle. The plaintiffs say that that work and disbursements have been wasted as a result of the failure of the defendant to comply with the orders of 11 December 2009.

10 I am not satisfied that all of the costs and disbursements claimed by the plaintiffs are costs thrown away in the relevant sense. In their outline of submissions on costs of the preparation of the bundle of documents dated 28 April 2010 the plaintiffs say that they have incurred disbursements in the sum of $2,615 from Snap Printing for the copying of the bundle of documents. It may be that those copies will not be able to be used in the second, or replacement, trial bundle which is to be filed. On the other hand, some use might be able to be made of those documents. The plaintiffs say in their outline of submissions that they have incurred legal costs in preparation of the bundle, an estimate of which is $46,854.50. Attachment 13 to the outline of submissions is a copy of the itemisation of draft time incurred by the plaintiffs' solicitors in preparation of the trial bundle and compliance with the orders of 11 December 2009. The attachment consists of a brief description of the work item, the date, and the value or amount of that item. It is not possible to determine from that list whether the items related to work that has been wasted in the sense discussed. For example, 11 items are described as 'preparation for court meetings' or 'preparation for court'. It is not clear to which court hearings or meetings these items relate nor how such work has been wasted in the relevant sense. A similar observation may be made about most, if not all, of the items contained in the plaintiffs' list.

11 An order that the defendant pay the plaintiffs' costs thrown away by reason of the defendant's failure to comply with the orders of 11 December 2009 would require a consideration of each item of work which the plaintiffs claim to have incurred and to have been wasted. The plaintiffs would not establish that the work was wasted merely because it was work done to prepare the first trial bundle. Such work might not need to be done a second time to prepare the second trial bundle. If so, it would not have been wasted.

12 The memorandum of consent orders which resulted in the orders of 11 December 2009 was signed by the parties on 7 December 2009. Events occurred after that which impacted upon the preparation of the trial bundle. On 8 December 2009 the plaintiff provided a draft supplementary affidavit of discovery. On 10 December 2009 the defendant's solicitors provided to the plaintiffs' solicitors a list of documents which the defendant intended to tender at trial but stated that the list was a work in progress because outstanding discovery was to be provided by both parties and the list would need to be reviewed once inspection was completed. The plaintiffs' solicitors provided a revised list on 18 December 2009. On 24 December 2009 the defendant's solicitors said that in light of the plaintiffs' further discovery further time would be required to consider the list of documents. The plaintiffs' solicitors responded by insisting upon a list being finalised before the further discovery had been considered and proposing that any supplementary discovered documents could be dealt with later.

13 On 8 January 2010 the defendant's solicitors informed the plaintiffs' solicitors that further steps needed to be completed before the list could be finalised. Those steps included the plaintiffs' solicitors providing the defendant's solicitors with copies of the further discovered documents which had not yet been provided and the defendant's solicitors considering the further discovery provided by the plaintiffs. The defendant's solicitors also observed that when they had inspected the plaintiffs' further discovery they had been handed further documents that had not yet been discovered. The defendant's solicitors said that they also intended to discover further documents. The defendant's solicitors proposed that the timetable for the preparation of the trial bundle be varied and provided a minute of consent orders to that effect.

14 The plaintiffs' solicitors did not agree with that course of action. On 16 January 2010 the defendant's solicitors informed the plaintiffs' solicitors that as the parties were unable to agree on an extension of the timetable, including the timetable for the preparation of the trial bundle, the defendant would ask the court to relist the matter for a status conference. The defendant's solicitors did so on 20 January 2010 and provided the plaintiffs' solicitors with a copy of their letter to the court.

15 The plaintiffs' solicitors elected to prepare, file and serve the trial bundle notwithstanding that the defendant's solicitors had applied to the court for the matter to be relisted to consider, amongst other things, varying the dates for the preparation of the trial bundle.

16 The matter subsequently came before a registrar of the court. The registrar ordered that the orders made on 11 December 2009 be vacated and that the first trial bundle be recalled. The registrar gave directions for the preparation of a second trial bundle.

17 The plaintiffs should not have prepared, filed and served the first trial bundle in circumstances where the defendant had reasonably stated that it was not able to specify the documents it intended to tender or inform the plaintiffs which of the documents the plaintiffs intended to tender might be tendered by consent. The plaintiffs acted prematurely in filing and serving the trial bundle for the reasons submitted by the defendant which I have set out above.

18 Any costs incurred by the plaintiffs in preparing the first trial bundle and thrown away by reason of the orders made by the registrar that the first trial bundle be recalled and a second trial bundle be prepared might have been avoided had the plaintiffs not acted prematurely in preparing, filing and serving the trial bundle. In all the circumstances, it would not be just to order the defendant to pay the plaintiffs' costs thrown away.

19 The defendant says it incurred costs in reviewing the bundle and in corresponding with the plaintiffs' solicitors regarding the deficiencies of the bundle. The costs claimed by the defendant are described in the defendant's solicitors' affidavit as 'the legal costs incurred by the defendant between 2 February 2010 and 4 March 2010 for work relating to the recalled trial bundle'. The list contains a brief description of items of work, their date and value or amount. I am unable to conclude from that list that any of the specified items of work were wasted in the relevant sense.

20 In any event, the defendant did not comply with the orders of 11 December 2009. In all the circumstances it would not be just to require the plaintiffs to pay the defendant's costs incurred in dealing with the first trial bundle prepared by the plaintiffs.

21 I will refuse the applications of both the plaintiffs and the defendant for costs thrown away in relation to the preparation of the first trial bundle. I will dismiss both applications. The result of that is that each party may claim their costs in relation to the first trial bundle as part of their costs of getting up in the usual way. If and when a party taxes its costs of the action it will be a matter for the taxing officer to determine whether or not that party is entitled to the costs of any particular item of work and the amount to be allowed for that work.