This guide is designed to assist parties with preparing their proceedings for hearing in the Professional Negligence List. It outlines the draft final orders that, in most circumstances, the Court will make at the final Conference hearing prior to a matter being set down for hearing.

DRAFT PNL FINAL ORDERS


It is contemplated that, unless made earlier in the proceedings, these orders will be made at a final Professional Negligence List Conference prior to the matter being put into the callover list to obtain a hearing date.

By this date it is expected that:

1. Pleadings are closed.
2. Expert reports on liability and damages have been served.
3. Instructing letters, statements of assumptions or documents provided to the expert have been served with the expert’s report.
4. Any expert conference has taken place and any joint expert report has been filed.
5. A Part 33 Statement of Loss and Damage has been filed and served.
6. Interrogatories have been answered.
7. Any notices to admit facts or authenticity of documents have been served and responded to.
8. Any orders for trial of a separate issue have been obtained and any limited question for the trial judge has been agreed upon or ordered.


These draft orders contemplate the following practical realities:

1. The time between the last PNL conference and the callover to obtain a trial date will be short (a matter of weeks).
2. The time between the callover to obtain a trial date and the trial date will be long (4 to 8 months).
3. Counsel may not be briefed until after the callover.
4. A considerable amount of trial preparation takes place in the last two months before trial.
5. Supplementary experts’ reports are often obtained after a trial date has been set.
6. Pleadings are often amended after the trial date has been set.


These draft orders are intended to:

1. Recognise the practical realities of trial preparation.
2. Focus the parties on the strengths and weaknesses of their case.
3. Permit a more informed appraisal of the case to facilitate earlier settlement discussions.
4. Provide an orderly division of labour between the parties in their trial preparation.
5. Assist the trial judge by having a uniform set of materials.


DRAFT FINAL PNL ORDERS
AND EXPLANATORY NOTES


1. Evidence Act Notices

Any notices under the Evidence Act that require “reasonable notice” should be given not less than 2 months before the trial.


2. Audio-Visual Link Applications

If any party intends to call evidence by Audio-Visual Link s/he should inform the other party. If the other party consents, the relevant form should be completed not less than 2 months before the trial. If the other party does not consent, an application should be made to the List Judge no less than 2 months before the trial.


3. Witness Statements

The evidence of the parties and all witnesses of fact (but not expert witnesses) should be by affidavit and should be served by a fixed date. The exchange should be simultaneous for both parties at a fixed date no less than 2 months before the trial date.


4. Witness List

Each party should serve a list of proposed lay and expert witnesses to be called, the anticipated duration of their evidence and the order in which the witnesses are expected to give their evidence. This list should be served no less than 1 month before trial.


5. Supplementary Expert Reports

Any supplementary expert reports (ie from experts whose reports have already been served) should be served no less than 1 month before the trial date. This accommodates issues of fact that may arise from the witness statements.


6. Expert Literature

Where an expert intends to rely on literature to support his/her opinion, the party calling that expert should, if so requested by another party, provide copies of any such literature (if available) or a list of any such literature (if it is not available) no later than 1 month before the trial date.

The literature should be limited to 5 relevant articles per expert. Literature does not replace expert opinion; it supports that opinion. The trial should not be used as a forum to examine the world literature on a topic; hence the recommendation to limit the number of articles which can be relied upon by one expert. Experts should be expected to be cross-examined on the literature relied upon.


7. Schedules of Loss and Damage

The plaintiff should provide a summary of the heads of damage. The defendant should respond to this document, noting agreement or disagreement on the heads of damage or the amount claimed. Where there is disagreement, the defendant should indicate the basis of the disagreement and state what amount, if any, it considers appropriate and why. Note that it is expected that the Part 33 statement will contain details of the plaintiff’s claim. This Schedule is a summary only. The plaintiff’s summary should be served no less than 2 months before the trial. The defendant’s summary should be served no less than 1 month before the trial.


8. Plaintiff’s Chronology

The plaintiff should prepare a chronology of material facts. There should be 3 columns:
1) DATE
2) DESCRIPTION
3) AGREED/DISPUTED
The third column should be left blank. The plaintiff’s chronology should be served no less than 2 months before the trial.


9. Agreed Chronology

The defendant should complete the plaintiff’s chronology noting in the 3rd column whether a fact is agreed to or is in dispute. This is now an agreed chronology and should be served no less than 1 month before trial.


10. Defendant’s Statement of Facts and Issues in Dispute

The defendant should list the matters of fact and issues in dispute from the defendant’s perspective. This should be served no less than 1 month before trial.


11. Plaintiff’s List of Questions for the Trial Judge

The plaintiff should prepare a list of questions for the trial judge. This should include questions directed to any disputed issues of fact (derived from the defendant’s chronology) and any other issues in dispute (derived from the defendant’s statement of facts and issues in dispute).

The list of questions should include disputed issues of breach of duty, causation and damages.

The list of questions should be served no less than 2 weeks before trial.


12. Glossary of Technical Terms

The defendant should prepare a glossary of technical terms to be served no less than 2 weeks before the hearing.


13. Amendments to Pleadings

Any amendments to the pleadings should be made not less than 2 weeks before the hearing. It is anticipated that with all witness statements and expert reports served any amendments would be to regularise the pleadings to accord with the evidence rather than to raise new allegations and defences.


14. Tender Bundles

The parties should agree on a list of documents to be included in their respective tender bundles. The objective is to not duplicate documents.

Agreed Tender Bundle

The Agreed Tender Bundle should include

1) the pleadings
2) part 33 statement of damages particulars
3) plaintiff’s schedule of loss and damage
4) defendant’s schedule of loss and damage
5) agreed chronology
6) defendant’s statement of facts and issues in dispute
7) plaintiff’s questions for the trial judge
8) plaintiff’s witness list
9) defendant’s witness list
10) glossary of technical terms

The plaintiff should prepare one copy of the agreed tender bundle for the trial judge and one copy for each of the parties.

Individual Tender Bundles

Each of the parties should prepare their own bundle of documents which they intend to rely on at the trial. Each party should send the other an index for their individual tender bundle. The index should be served no less than 3 working days before the trial.

Each party should prepare a copy of their tender bundle for the trial judge.

The Individual Tender Bundle should include (but is not limited to) that party’s

1) affidavits by lay witnesses
2) expert reports
3) instructing letters
4) expert literature
5) selected primary documents


15. Liberty to Apply

There should be a general order for liberty to apply. But if a party is in default of an order for more than 14 days (for matters to be done more than 1 month before the trial) or for more than 7 days (for matters to be done less than one month before the trial) the matter should be brought before the registrar or, if a judge has been appointed before that judge, for further directions.