Proctor : February 2019
26 PROCTOR | February 2019 A trial bundle is a compilation of copies of relevant documents in one or more folders (usually but not always ring binders) which are (ideally) tendered to become one exhibit by consent. Having a compilation of relevant documents become one exhibit at trial, with a working copy for the trial judge, facilitates a quicker and more efficient trial because witnesses can be referred to particular documents in the one exhibit during their evidence, as can the trial judge during opening and closing submissions. It is usual for pre-trial directions to include a direction about the preparation of a joint trial bundle but, even if no directions are made, the parties should consider whether having a trial bundle will assist the presentation of the case. Agreeing on the index As it is desirable for a trial bundle to be tendered by consent, parties should attempt to agree on the index of documents that will be in the trial bundle (including reaching agreement that those documents are admissible). If parties cannot agree on the index to a trial bundle, a party may decide to prepare its own bundle. However, if each party decides to prepare its own bundle, this can lead to duplication of documents in the bundles – an undesirable choice for that reason. The contents of the trial bundle will depend on a number of factors, such as: a. the type of bundle, which depends on its purpose, such as whether it is a core bundle or intended as a complete compilation of all relevant documents in the case, or something else (discussed further below) b. whether the entire bundle is to be admitted by consent or whether objections are taken, or likely to be taken, to the admissibility of any documents (discussed further below). If a serious objection is to be taken to a particular document by your client, then you should consider objecting to the document being included in the trial bundle at all because, once the document forms part of the bundle, it is difficult to ignore it or forget about it. Preparing a trial bundle c. whether any documents are referred to in the pleadings. Usually, all documents referred to in the pleadings would be included in the trial bundle. However, the pleadings themselves should not be in the trial bundle. As to the latter, a better approach is to prepare a small folder containing a working copy of the current pleadings and particulars for the trial judge – separate to the trial bundle – and to provide that to the trial judge at the commencement of the trial. d. the core documents in the case. The documents which are likely to be referred to numerous times during the trial should appear in a section at or near the start of the first volume. At least some of these documents will be referred to in the pleadings as well. e. the common ground between the parties on the pleadings (such as that a contract was executed) f. the facts in issue in the proceeding (which turns on the pleadings) and is relevant to those facts in issue. It is very important that you do not pad out the trial bundle with irrelevant documents. For example, correspondence between the solicitors is not usually relevant to the facts in issue g. whether any documents have been briefed to any experts in the matter. While those documents should, as a general rule, be included in the trial bundle, the experts’ reports should not be included in the trial bundle. Taking into account these matters, the index should be drafted in a logical manner. For example, it may be appropriate for the documents to be listed chronologically in the index. Do not list them in reverse chronological order. Another approach may be to divide the documents into different categories by reference to particular issues (but chronologically within those categories). For example, the index may contain these sections: 1. the parties (which contains Australian Securities and Investments Commission (ASIC) searches of the parties and any other documents relating to the parties themselves) 2. core documents (being those documents central to the dispute) 3. documents referred to in the pleadings (other than those in the core documents section) 4. documents relevant to damages 5. miscellaneous (which may contain, for example, a previous order of the court). When seeking to reach agreement about the trial bundle, a party should not propose an index which contains the entire list of that party’s disclosed documents. Such a proposal demonstrates that the party is making no real attempt to focus on the real issues likely to be ventilated at the trial. Further, the trial judge will not be impressed with a trial bundle which contains every document which has been disclosed by a party. Physical preparation of the trial bundle Usually, the preparation of the trial bundle falls to the plaintiff or applicant. This should be no hardship because, as the moving party, it is in that party’s interests that the case is presented smoothly. The trial bundle should be paginated, with an index identifying the content of the entire trial bundle by reference to those pages at the front of each folder. Each folder of the trial bundle should be identified by a number visible on the spine and the front of the folder. The index should also make clear which documents are contained in each volume. You should ensure that the ring binders used for the trial bundle do not contain too many pages because this will prevent the pages from being turned easily and may also lead to the clasps falling open. You should also ensure that the photocopying of each page in the bundle is done carefully, so that the content of each page can be viewed or read, and nothing has been cut off. Do not include copies of documents which have been highlighted or annotated unless that forms part of the document as it was in its original state or unless a better copy cannot be obtained. You should include spreadsheets as one large spreadsheet which is in the bundle but is folded up, rather than having the spreadsheet divided and appearing on separate A4 pages. The content of any spreadsheet, including numbers, should be in a legible font of at least 9 point.