Practice Direction No.14
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
PRACTICE DIRECTION No. 14
Pre Hearing Directions for applications under section 106 of the Industrial Relations Act 1996
(Pursuant to Rule 89 of the Industrial Relations Commission Rules 1996)
1. The purpose of this Practice Direction is to facilitate the resolution of section 106 matters before the Industrial Relations Commission of New South Wales, by ensuring that such proceedings are conducted before the Commission in an efficient and expeditious manner and that practitioners and others who appear before the Commission, do all they can to facilitate the just, quick and cost effective disposal of such proceedings.
2. This practice direction will become effective 14 days after publication in the Industrial Gazette.
Conciliation under s109 - standard directions
3. The purpose of conciliation is to resolve the proceedings by agreement, without proceeding to a full hearing of the matter. Conciliation provides the parties with an opportunity to reach agreement about some or all of the issues in dispute. It is essential that the parties clearly identify the issues between them prior to the conciliation. The Court's rules and directions also seek to minimise costs incurred prior to conciliation.
4. The following standard directions apply in respect of matters listed for conciliation:
(a) Each party will have a representative attending the conciliation who is fully conversant with the matter and who has full authority in relation to the settlement of the matter.
(b) Each party will attend the conciliation with information as to the costs incurred to date and an assessment of the amount that would be involved by way of costs, if the matter were to proceed to a hearing.
(c) In circumstances where a party believes that there is an issue of fact or law that has not already been identified in the pleadings and, would require determination if the matter proceeded to a hearing, the party is to document that issue and file and serve a copy of the relevant documentation, not less than 7 days prior to the date fixed for the conciliation.
(d) Where any term of a written contract is in issue, the party raising that issue is to file and serve a copy of the contract not less than 7 days prior to the date fixed for the conciliation together with a brief summary of the issue sought to be raised, unless the contract and details of the issue to be raised have been earlier filed and served.
(e) Parties are to confer in the week prior to the conciliation and shall clearly identify all issues or other matters remaining in dispute.
(f) The applicant is to file and serve a statement as to mitigation (of damages or loss) within 7 days of the date allocated for the conciliation.
Unsuccessful conciliation - pre-hearing standard directions
5.
(a) On the issue of a certificate of unsuccessful conciliation, the standard directions in paragraph 6 will apply, unless the Court makes alternative directions.
(b) The directions in the usual case shall be made at the end of the conciliation by the Judge or Deputy President who has conducted the conciliation.
(c) Any agreement to vary the standard directions may be dealt with at the conciliation, or later, but in any case shall be subject to approval by the Court.
(d) After the conciliation, consent variations or contested variations to standard directions will usually be dealt with by the directions judge.
(e) Consent variations may be dealt with in chambers. Applications for a listing for directions (for contested applications to vary directions or where the Court does not grant a consent application to vary) are to be made to the directions judge.
(f) The Court is likely to issue alternative directions in proceedings where, having regard to all of the circumstances, including the amount of any claim and the cost of the proceedings, the standard directions are not appropriate.
6. The standard directions are:
(a) The applicant shall file and serve any amended summons within 14 days. Any objection to the amendment shall be raised within 14 days by way of motion, supported by affidavit.
(b) Except by leave and subject to these standard directions, all evidence in the proceedings shall be by way of clearly paginated affidavits and annexures, comprising the witnesses' evidence in chief.
(c) The applicant is to file and serve all affidavits to be relied upon within 28 days.
(d) The respondent is to file and serve all affidavits to be relied upon in reply within 28 days of the filing and service of the affidavits to be relied upon by the applicant.
(e) The applicant is to file and serve any affidavits in response to the respondent's affidavits within 14 days of the filing and service of the affidavits referred to in paragraph (d).
(f) Documents which are referred to in an affidavit need not be annexed where they are extensive and it is otherwise inconvenient to do so, but may be exhibited at the time of swearing. If documents are not annexed they must be produced for inspection by a party and, upon request, a copy supplied to the other party.
(g) A party seeking to rely on the oral evidence of any person from whom an affidavit is unable to be obtained must give notice to all other parties of the name of the intended witness and an outline of the evidence intended to be adduced. Such notice must be given within the time specified for the filing of the party's affidavit material.
(h) Summonses for the production of documents may be made returnable before the Industrial Registrar upon any date that the Registrar conducts a list. Where orders are sought other than for photocopy access for both parties or if a claim for privilege or the like is made, those matters will be referred by the Registrar to a duty judge to be dealt with on an interlocutory basis.
(i) Discovery and inspection of documents, whether formal or informal, must be carried out in accordance with the Industrial Relations Commission Rules 1996.
(j) All expert witnesses must be retained on the basis and subject to the provisions of the relevant Supreme Court rules, save that service of reports must be effected in accordance with the Industrial Relations Commission Rules 1996. Parties should also consider the retainer of a joint expert, or if separate experts are retained, to have them confer privately prior to trial, in order to resolve or reduce areas of disagreement.
(k) Within 14 days of all affidavit material having been filed:
(i) the applicant shall serve a list of all documents on which the applicant intends to rely by way of evidence in the proceedings on all other parties;
(ii) within 14 days of the receipt of that list, all other parties shall serve on the applicant a list of any additional documents on which they intend to rely by way of evidence in the proceedings;
(iii) thereafter, within a further period of 14 days each party shall advise all other parties as to which of the documents contained in each list will be the subject of consent to becoming evidence in the proceedings;
(iv) within a further period of 14 days the applicant shall prepare, file and serve a Court Bundle of documents in paginated form with appropriate indices including, within one separate section, all documents which are by consent to become evidence in the proceedings and, in another section, all documents which any party seeks to become evidence in the proceedings but the tender of which is opposed;
(v) subject to any order or agreement to the contrary, the reasonable costs of the preparation of the Court Bundle shall be borne equally in the first instance by all parties and in any case, subject to further order of the Commission.
7. The directions judge will fix a directions date in each matter. This is the date by which the Court expects that the above steps will have been completed. In the usual case, where the standard directions have been made, the date will usually be 12 to 13 weeks after the certificate of unsuccessful conciliation has been issued. An explanation for any failure to comply with directions must be given at the directions hearing, when the directions judge will issue further directions to ensure that the matter is expeditiously prepared for hearing.
8. The Court expects and requires that its orders will be observed. It is the obligation of all parties and their legal practitioners and agents, including parties not in default, to exercise vigilance in ensuring that the timetable is observed. Notwithstanding the obligation of a party in default to bring the matter to the Court's attention, a party not in default is also required to exercise the liberty to apply to bring any default to the attention of the Court, after giving the defaulting party reasonable notice of its default.
9. After these steps have been attended to, the applicant or the applicant's legal representative or agent must certify to the directions judge that the steps have been completed.
10. The matter will then generally be referred to a judge for hearing provided that the estimate of the likely court time necessary for the hearing of the proceedings, including addresses, is included in the certificate as having been provided by the legal representative or agent of the parties who is in the best position to make the assessment.
11. Where such steps have been taken in matters before the directions judge prior to the promulgation of this practice direction, the applicant or the applicant's legal representative or agent must certify that the steps have been completed. The matter will then be referred to a judge for hearing, notwithstanding that some steps required under the previous standard directions or the directions made in the proceedings (but not under this practice direction), have not been completed.
12. The further preparation of the matter for hearing will be at the sole direction of the trial judge, but the parties may anticipate that the trial judge will require that the parties give their attention to the following matters:
(a) Whether further conciliation is a realistic option, having regard to the evidence filed after the first conciliation
(b) Clarification of the issues calling for resolution in the proceedings. A list specifying such issues shall be filed and served at least 5 working days prior to the first day of the hearing.
(c) Any revised or refined estimate as to the likely court time necessary for the hearing of the proceedings, including addresses, further to the estimate given in terms of paragraph 10 of this Practice Direction. Any further estimate must be provided by the legal representative or agent of the parties who is in the best position to make such an assessment.
(d) Those parts of the affidavit material which will not be pressed.
(e) Those parts of the affidavit material to which objection will be taken, distinguishing objections as to form from objections as to substance.
(f) Those deponents not required for cross examination.
(g) Those matters about which agreement can be reached.
(h) The availability of witnesses who are required to give evidence including the possibility that witnesses remote from the hearing may give evidence by video link and the practicalities of such an arrangement. There should also be discussions about the venue of the hearing or part of the hearing where a number of witnesses reside in an area remote from the location of the Court.
(i) Whether the rule in Brown v Dunn should not apply, where the necessary contrary factual material is raised in the affidavit materials, subject to any order to the contrary.
13. As a general rule, parties may file additional affidavits to deal with any parts of affidavits filed to which objections as to form have been taken. A trial judge may permit oral evidence to be called at the hearing with respect to those parts of any affidavit material not pressed or struck out, because of an objection as to form.
14. Parties have liberty to apply generally on the giving of at least 24 hours notice to the other side of the application for relisting and the purpose of the application.
Dated: | 9 June 2004 | F L Wright, J |
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