The Equity Division

The Equity Division deals principally with civil cases in which claims are made for remedies other than recovery of debts or damages. Claims for injunctions to prevent wrongful conduct, to have contracts enforced or set aside, to rights of property (including land and intellectual property), and claims relating to the administration of corporations, partnerships, trusts and deceased estates are dealt with by the Division. Applications under numerous statutes including the Corporations Act 2001 (Commonwealth), Family Provision Act 1982 and Property (Relationships) Act 1984 are also brought in the Division. The workload of the former Admiralty, Commercial, Family Law, Probate and Protective Divisions is dealt with by Equity Judges, as is the Technology and Construction List.

ORGANISATION OF BUSINESS

The judicial work of the Division is carried out by 12 Judges, two Masters, two Registrars and a number of Deputy Registrars. Three of the 12 Judges are dedicated to the Admiralty List, Commercial List and Technology and Construction List. From time to time, the Division also receives assistance from Acting Judges.

Apart from applications for probate, most summonses and notices of motion are listed before a Registrar who may give directions and may refer the matter to a Judge or Master. The Registrar may refer a matter to the Duty Judge, the Judge dealing with the Corporations List, or a Master, or place it in the general list or the short notice list or, if appropriate, hear the matter personally.

Most applications for the winding up of corporations are dealt with by a Registrar or Deputy Registrar. On Monday to Thursday each week, a Deputy Registrar sits to deal with subpoenas or notices to produce. Contested subpoenas or notices to produce are referred to the Registrar for hearing.

Lists
There are a number of lists dealing with specialist areas of the Division’s work. Particular Equity Division Judges have been appointed by the Chief Justice to be responsible for each of these lists. In 2002 they were Mr Justice Windeyer (Probate List and Protective List), Justice John Bryson (Adoptions List), Justice McClellan (Admiralty List, Commercial List and Technology and Construction List) and Justice Austin (Corporations List).

Admiralty List
The Admiralty List deals with maritime and shipping disputes. It is administered by the same Judges and in the same manner as the Commercial List.

Adoptions List
This List deals with applications for adoption orders and for declarations of the validity of foreign adoptions under the Adoption of Children Act 1965. When all supporting affidavits are filed, most applications are unopposed and are dealt with by Judges in the absence of the public and without the attendance of applicants or their lawyers. Unopposed applications require close attention for compliance with formal requirements but there is little delay. A small number of contentious hearings take place in court in the absence of the public. Most of these relate to dispensing with consent to adoption. Requests for information under the Adoption Information Act 1990 are dealt with by the Registrar in Equity.

Commercial List
The Commercial List is concerned with cases arising out of transactions in trade or commerce. The management and hearing of cases in this List are usually allocated to Justice McClellan and Justice Clifford Einstein. Other Judges have been assigned, from time to time during the year, as a third Judge to whom cases in this List may be allocated. The judicial case management regime, which was developed in the former Commercial Division, ensures that, by attention to the true issues at an early stage, timely exchange of witness statements and overseeing the preparation of every case, matters are brought on for hearing quickly. There is also adherence to the allotted hearing dates and the policy has been adopted of continuing hearings to conclusion, even though time estimates may be exceeded.

Corporations List
The work of this List is carried out by Justice Austin and Justice Barrett. A Judge sits each Monday to hear short applications under the Corporations Act 2001 (Commonwealth) and related legislation. The Judge will also give directions and monitor preparations for hearing in longer matters, as well as in other complex corporate cases. Cases managed in this List are generally given a hearing date when ready. This List is the busiest in Australia, accounting for approximately half the reported cases in the specialist law reports.

Probate List
The work performed by the Judges and the Probate Registry consists of both contentious and non-contentious business. The majority of non-contentious cases are dealt with by the Registrar and Deputy Registrars. This includes the granting of common form probate where applications are in order and unopposed.

Both the Probate List Judge and the Registrars have procedures whereby some supervision is kept over executors in the filing of accounts and ensuring beneficiaries are paid. This supervision is usually by way of “spot checks” or after receiving a complaint.

The Registrar sits in court twice each week to consider routine applications and applications concerning accounts. Should a routine application require a decision on a matter of principle, the application is referred to the Probate List Judge, usually for hearing the same day.

The Probate List Judge sits once a week to deal with complex applications. If an application can be dealt with quickly it is usually heard immediately. Others are set down for hearing, normally within a month.

Contentious business, particularly disputes as to what was a testator’s last valid will, is monitored by either the Registrar or a Judge. When these cases are ready to proceed, they are placed in the call-over list to receive a hearing date before an Equity Judge.

The Probate List Judge meets with the Registrars on a regular basis to discuss the efficient working of the List.

Protective List
The work of this List is to ensure that the affairs of people who are incapable of looking after their property or themselves are properly managed. The List also deals with appeals from the Guardianship Tribunal of NSW. The Protective List Judge also deals in chambers with applications by the Protective Commissioner for advice as to the administration of estates.

Most matters are dealt with pastorally with a minimum of legalism. However, when there is a dispute which cannot be solved in this way, it is decided according to law.

The Deputy Registrar dedicated to the Protective List sits in court one day a week and almost all cases are listed in front of her. The Deputy Registrar may submit a case to be determined by the Judge without further appearance or adjourn a case into the Judge’s list. A Judge sits once a week to deal with any referred cases. Most cases are considered on the Judge’s usual sitting day as soon as the parties are ready but longer cases are specially fixed, normally within a month.

The Protective List Judge meets with the Deputy Registrar each month to discuss the efficient working of the List.

Technology and Construction List
By amendment to Part 14A of the Supreme Court Rules, gazetted on 26 October 2001, the Construction List became known as the Technology and Construction List in recognition of the increasing number of cases involving complex technological issues. These cases, as well as disputes arising out of building or engineering contracts, are administered by the same Judges and in the same manner as the Commercial List.

Other lists
Other lists in the Equity Division that appear in this report are the expedition, short notice, Masters’ and general lists.

Expedition list
Each year two Judges of the Division are designated to sit exclusively in the expedition list. For the first half of 2002 Justice John Bryson and Justice Palmer were the expedition list Judges. The Chief Judge in Equity and Justice Palmer were the expedition list Judges for the second half of 2002. They heard all applications for expedited hearings. A case is expedited when sufficient urgency is shown. When the application is granted, the Judge gives directions and monitors the preparations for hearing. The same Judge hears the case when it is ready to proceed.

In 2003 only one expedition list Judge will sit because the delay in the general list has been considerably reduced.

Short notice list
Cases in this list are fixed for hearing before Judges when judicial time becomes available at short notice. A Registrar maintains this list, which includes cases that will be ready for hearing with three days’ notice. These are mostly cases of a less complex kind and can usually be disposed of within one day.

Masters’ list
The work of the Equity Division Masters includes dealing with contested procedural applications and conducting inquiries directed by Judges. Their independent work includes the hearing of most applications under the Family Provision Act 1982, the Property (Relationships) Act 1984 and certain provisions of the Corporations Act 2001 (Commonwealth). The chapter titled “The Masters” also describes the work of Masters.

Each month cases to be heard by a Master are called over and hearing dates about two months ahead are given. Each morning one of the two Masters takes matters referred by the Registrar and determines such of them as can be dealt with immediately, before proceeding to hear matters previously fixed for hearing.

General list
Other cases are placed in a general list when set down for hearing (if commenced by statement of claim) or when considered ready for hearing (if commenced by summons). Four times a year the Registrar conducts a call-over of these cases. The Registrar gives provisional fixtures for hearing (about three months ahead) and nominates a Judge to hear the case. A pre-trial directions hearing (about one month ahead) is also appointed before the same Judge. At that pre-trial directions hearing the Judge monitors the preparations for hearing, gives directions and endeavours to ensure that the case will be ready to be heard on the date fixed.

Duty Judge
At all times there is an Equity Division Judge acting as the Duty Judge. The Duty Judge mainly hears urgent interlocutory applications and uncontested or short cases, sometimes outside normal court hours. Judges of the Division act as Duty Judge on a roster system, for two weeks at a time. Where the Duty Judge considers there would be a substantial saving of the Court’s time if a certain case was given an early final hearing, the Duty Judge may (within certain limits) fix an early hearing date and engage in pre-trial management of the case. The work covers an enormous range, including such matters as urgent applications by the Department of Community Services to intervene where a child’s welfare is involved, as well as property and commercial disputes.

Registrars
Registrars also deal with procedural applications of various kinds and with applications under the Adoption Information Act 1990. The work of the Equity Division Registrars is referred to throughout this chapter. The chapter titled “The Registrars” also describes the work of Registrars. The Probate List Judge is supported by a Registrar who also manages non-contentious probate proceedings.

Alternative dispute resolution
The Equity Division encourages the settlement of disputes by alternative means, such as mediation. The Supreme Court Rules specifically provide for the referral of proceedings to mediation or neutral evaluation processes with the consent of the parties and referrals for mediation may now also be made without such consent. An information package is available from the Registry in relation to mediation and neutral evaluation and includes a list of mediators and evaluators to whom Supreme Court proceedings may be referred under Part 7B of the Supreme Court Act 1970. The Registrar of the Division, the Probate Registrar and the Senior Deputy Registrars are also qualified mediators.

In the Commercial List, Technology and Construction List and Admiralty List orders are frequently made in appropriate cases referring to suitably qualified experts technical questions for inquiry and report. Sometimes the whole case is referred out. On receipt of the report the Court determines whether and to what extent it should be adopted. This procedure enables the speedier resolution of many technical questions.


OPERATIONAL STATISTICS

New filings
Admiralty List
One new case commenced during the year, compared with four in 2001 and nine in 2000.

Adoptions List
There were 170 applications filed, compared with 143 in 2001 and 150 in 2000.

Commercial List
There were 216 cases commenced in 2002, compared with 196 in 2001 and 174 in 2000.

Corporations List
There were 3113 cases commenced, compared with 3148 in 2001 and 2316 in 2000. Additionally, there were 54 new applications filed in 2002 for examinations of officers of companies in liquidation.

Probate List
During the year 21,895 applications for a grant of probate or other related cases were filed (including 132 contentious cases), compared with 20,825 (including 124 contentious cases) in 2001 and 20,672 (including 101 contentious cases) during 2000.

In 2002, there were 20,986 applications filed by way of summons without a return date, 16 by summons with a return date, 42 by statement of claim and 851 by other methods. Cases were filed at a relatively constant rate throughout the year.

Applications for a grant of probate came from the following sources: 18,856 from solicitors, 1304 applications by the Public Trustee, 510 personal applications and 130 private trustee company applications. These figures represent 90.7 per cent, 6.3 per cent, 2.5 per cent and 0.6 per cent, respectively, of all applications for grant of probate filed during 2002.

Trustee companies filed 652 elections to administer estates of less than $50,000. An election is a statutory power to “elect” to administer an estate and is restricted to trustee companies. In these types of cases it operates as an alternative to applying for a normal grant.

Protective List
There were 74 new applications filed, compared with 91 in 2001 and 107 in 2000. A further 32 miscellaneous applications stemming from previous matters were heard by the Judge during 2002.

Technology and Construction List
There were 69 cases commenced in 2002, compared with 56 in 2001 and 45 in 2000.

Other Equity Division new filings
Property (Relationships) Act cases
There were 77 cases commenced, compared with 45 in 2001 and 48 in 2000.

Family Provision Act cases
There were 505 cases commenced, compared with 481 in 2001 and 440 in 2000.

Other cases
There were 1438 other cases commenced, compared with 1440 in 2001 and 1311 in 2000.

Disposals
Admiralty List
In 2002, four cases were disposed of, compared with 11 in 2001 and 18 in 2000. The statistics for the time taken from commencement to disposal are set out in Table 7.



Adoptions List
In 2002, 176 orders were made, compared with 129 in 2001 and 152 in 2000. It is estimated that over 70 per cent of the applications were disposed of within 2.4 months of commencement. The time taken is measured from the date of filing the summons.

Commercial List
In 2002, 203 cases were disposed of, compared with 173 cases in 2001 and 139 in 2000. The statistics for the time taken from commencement to disposal by final judgment or order, settlement or discontinuance are set out in Table 8.



Probate List
A total of 22,828 grants were made in 2002 compared with 23,140 in 2001. The most common grant in 2002 was the grant of probate in common form (20,480 in 2002 compared with 20,627 in 2001). Other categories of grant in 2002 were: administration (1389 in 2002 compared with 1524 in 2001), administration with will annexed (681 in 2002 compared with 716 in 2001) and reseal (278 in 2002 compared with 273 in 2001).

In 2002, 143 contentious cases were completed, compared with 136 in 2001. The statistics for the time taken from commencement by filing of an application for probate to disposal by final order are set out in Table 9 and indicate that 56 per cent of the contentious cases were completed within 6 months of filing and 77 per cent within 12 months.




Some cases in the Probate List were disposed of using alternative dispute resolution. In 2002, Probate Registrars conducted 77 mediations covering probate and non-probate issues, compared with 70 in 2001. Approximately 65 per cent of these cases were settled at mediation or subsequent to mediation, compared with 73 per cent in 2001. Of the mediated cases that involved probate issues only, 80 per cent were settled.

Protective List
All but three applications filed in 2002 were disposed of during the year. These remaining matters were finalised in February 2003. The usual time for orders to be made is 3.5 weeks. Unless there is some extraordinary factor such as an overseas private manager, all cases are disposed of within two months of commencement (which is by summons) unless the parties require further time to obtain medical or financial evidence. Some finalised cases later require further consideration by the Court as the health or asset position of the person concerned changes with time. If this occurs, the file is re-opened and not recorded as a new filing.

Technology and Construction List
In 2002, 76 cases were disposed of, compared with 29 cases in 2001 and 38 in 2000. The statistics for the time taken from commencement to disposal are set out in Table 10.



Other disposals
Other matters, including disposal of cases in the Corporations List, Property (Relationships) Act cases and Family Provision Act cases, were dealt with by the making of final orders. Table 11 shows the number of these cases dealt with by judicial officers and the Registrar.



Alternative dispute resolution
Some cases were disposed of as a result of alternative dispute resolution. In 2002, there were 139 non-probate mediations conducted in the Equity Division, compared with 166 in 2001. Overall, 76 per cent of mediations settled at mediation during 2002, compared with 78 per cent during 2001. The majority of mediations involved Family Provision Act cases. Mediations were conducted in the following areas of law: Family Provision Act, partnership, Property (Relationships) Act, declaratory relief, section 66G of the Conveyancing Act, easements, trusts, mortgagor/guarantee, negligence, taxation, costs, debt, leases, nuisance, building disputes, breach of duty, specific performance and probate. In a number of cases the dispute included more than one of the above categories and in some cases the mediation embraced disputes not apparent on the face of the court documents.

It is expected that the demand for Registrar-conducted mediations in 2003 will not diminish. Statistics show that, on average, each mediated settlement saves more than two judge-days of hearing time.


Pending caseload
Admiralty List
There were two cases pending at the end of 2002, compared with four in 2001 and 10 in 2000.

Adoptions List
There were 38 cases pending at the end of 2002, compared with 41 in 2001 and 54 in 2000.

Commercial List
There were 234 cases pending at the end of 2002, compared with 217 in 2001 and 207 in 2000.

Probate List
Whilst there were no non-contentious probate applications pending at the end of the year (as in 2001 and 2000), there was a total of 72 contentious cases pending, compared with 83 in 2001 and 92 in 2000. Of the 72 cases pending, 55 had been commenced in 2002. Of the 83 cases pending at the end of 2001, 57 had commenced that year.

Protective List
There were three applications pending at the end of the year, compared with four in 2001.

Technology and Construction List
There were 93 cases pending at the end of 2002, compared with 100 in 2001 and 68 in 2000.

Other pending caseload
At present, it is not possible to report separately on pending caseload for the Corporations List, Property (Relationships) Act cases, Family Provision Act cases and other cases.

There were 2960 proceedings of these classes pending at the end of 2002, compared with 2989 in 2001 and 3291 in 2000.

Time standards
The Court has determined that it will develop time standards for the disposition of its civil trial work. The Court is not able to publish time standards until improvements are made to computer-based case management systems which will enable the Court to monitor and measure the case management process with speed and precision not presently available.

Admiralty List
The case management procedures adopted in this List mean that all cases come before a Judge approximately four weeks after the originating process is filed. This enables the Court to assess the matters in issue and any urgency. Directions hearings are held which state procedures and deadlines to be met by the parties to ready their case for final hearing. Interlocutory applications are heard generally on a Friday. A hearing date is allocated when the application is ready to be heard. Once before the Court, urgent matters can be accommodated within a very short period of time.

Adoptions List
There is no significant waiting time for hearing contentious adoption cases.

Commercial List
The position is similar to the Admiralty List.

Corporations List
Most Corporations List cases are heard within a short time after the case is fully prepared.

Probate List
In contentious proceedings, summons cases are listed before a Registrar on a date within three to four weeks of filing. Statement of claim cases are immediately listed before the Registrar once pleadings have closed. Urgent orders which can be made by the Registrar, such as orders for special grants to continue the operation of a business or legal action, are made on the day of filing.

Contested cases, where all evidence has been filed and readiness for hearing has been established, are placed in the general list for the next available call-over. The Registrar then nominates the Judge who is to hear the case, gives a hearing date (about three months ahead) and a date for a pre-trial directions hearing (about one month ahead).

For non-contentious probate applications the time between the filing of an application and the making of the grant is usually two working days.

The time taken from the date of grant to the date of posting the parchment is normally one working day, as in 2001 and compared with approximately three working days during 2000.

Protective List
All short applications were heard when ready. Longer cases, when ready, are given a special fixture within a month.

Technology and Construction List
The position is similar to the Admiralty List.

Other lists
There is no appreciable delay in the expedition list or the work of the Duty Judge.

For short notice list cases there is a waiting time of up to three months between the time of placement in this list and hearing. At the end of 2002, there were 10 cases in the short notice list awaiting hearing, compared with 14 at the end of 2001 and 19 at the end of 2000. The oldest case awaiting hearing had been entered in the list on 4 December 2002.

For cases in the Masters’ list, approximately three months elapse between the date the case is placed in the list and the date of hearing.

For contested cases not in any other list, where the parties comply with procedural requirements there is normally a waiting time of approximately six months between the date when the case is placed in the general list (to be allocated a hearing date) and the date of hearing.

As at the end of 2002, there were 7 cases in the Masters’ list (compared with 43 at the end of 2001 and 82 at the end of 2000) and 34 cases in the general list (compared with 48 at the end of 2001 and 12 at the end of 2000).


OTHER ASPECTS

Interlocutory applications in the Admiralty List, Commercial List and Technology and Construction List
The procedures for listing interlocutory applications in these Lists on Fridays have minimised inconvenience to the parties. Directions are generally given for written submissions. These shorten the actual hearing time and permit the Judge to read them prior to hearing and frequently enable extempore judgment to be given. Unless it is anticipated that an interlocutory application will last for more than two hours, the parties proceed on the basis that, once directions for the hearing have been met, the matter will be heard on a Friday.

Practitioners with cases in the directions lists which involve non-contentious directions, provide short minutes of consent orders to the Judge hearing that list prior to the Friday mention. This enables the making of orders in chambers, meaning another court attendance is unnecessary. This procedure saves parties time and inconvenience.

Electronic technology
Judges continue to encourage the utilisation of electronic technology. Steps are proceeding, with the assistance and co-operation of the legal profession, to plan for electronic filing of documents in the Court, electronic capture of documents to be exchanged between parties, electronic bulletin boards for straightforward consent orders and electronic provision of subpoenaed documents. These steps are well understood by the larger firms of solicitors but the Court must keep in mind the necessity to provide available and affordable justice for all litigants. The Court will need to ensure that these reforms do not operate to transfer costs to the Court that are now borne by litigants.

Other Probate List work
During 2002, Probate List work also included the Registrar considering 58 applications for commission by executors and administrators and making 173 declarations of the Court with respect to applications concerning informal wills. The Deputy Registrar (Accounts) vouched accounts in 184 estates and moderated or assessed bills of costs in 307 estates. The Probate Office also prepared 3175 exemplifications (official copies of a grant of probate issued under the Court seal) and 1045 office copies of wills.

Other Corporations List work
During 2002 the court time used by Deputy Registrars for Corporations Act examinations was 138 days involving 54 cases. This compares with 65 examinations of this type conducted over 118.5 days last year.