the statutory regime and the relvant principles
6 Section 50 of the Act provides:
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 50 is a facultative section and should be construed accordingly: R v Connors [2016] ACTSC 137, [10] (Refshauge J). The section should not be given a restrictive or narrow interpretation, bearing in mind its intended purpose, which is to permit the court conveniently to hear summary evidence of voluminous or complex documents in the prescribed circumstances: Thackray v Gunns Plantations Ltd [2011] VSC 380 at [66] (Davies J).
8 In Re Idylic Solutions Pty Ltd; ASIC v Hobbs [2012] NSWSC 568 at [63], Ward J (as her Honour then was) noted that there are three matters to be determined by the Court for the purposes of a s 50 application:
(a) whether the relevant summaries are summaries of information contained in the underlying documents (as opposed to conclusions or statements of opinion);
(b) whether the volume and/or complexity of the underlying documents are such that it would not otherwise be possible to conveniently examine the evidence; and
(c) whether a reasonable opportunity has been given to the other parties to the litigation to examine or copy the underlying documents.
9 A summary within the meaning of s 50 of the Act is a summary of the evidence sought to be extracted from the voluminous or complex documents: Thackray at [67]. A summary may properly be limited to the specific primary facts sought to be adduced from the underlying documents: Idylic Solutions at [66]. It is not necessary to summarise each document individually nor every detail, fact, or feature of a document: Idylic Solutions at [66]; Thackray at [67].
10 It follows that "the evidence in support of a summary which is sought to be received under s 50 of the Act must explain what, with some degree of precision, it purports to be a summary of": Charles Parsons & Co Pty Ltd v Express Publications Pty Ltd [2017] NSWSC 1031 at [16] (Stevenson J).
11 Because "[b]y definition, a summary cannot contain everything in the underlying document or documents", the selection of what to include in the summary inevitably involves some exercise of judgment and/or opinion: Connors at [22]-[23]. Section 50(3) of the Act provides that the opinion rule does not apply to evidence adduced in accordance with a direction under the section: see, for example, Connors at [24].
12 The requirements of s 50(2) of the Act are mandatory pre-conditions for the exercise of the Court's power to give such a direction: see ACCC v World Netsafe Pty Ltd [2002] FCA 519 at [3] (Spender J). Section 50(2) affords procedural fairness to the other party by enabling any concerns about selectivity to be tested and, if necessary, objected to by the other party: Connors at [30].
13 There is no single way to satisfy the requirement in s 50(2)(b) of the Act: Thackray at [70]. In Idylic Solutions, Ward J held that the focus of s 50(2)(b) was on the party having the opportunity to copy or examine the documents, not to analyse them in detail over the relevant period: Idylic Solutions, [108].