Please substitute these pages for the first and last pages of
PRACTICE NOTE NO. 88
previously distributed.
PRACTICE NOTE NO. 88
COMMON LAW DIVISION
Differential Case Management
CONTENTS
PART 1 Introduction 1
PART 2 General 4
PART 3 The DCM Document 7
PART 4 Ordinary Proceedings 9
PART 5 Transferred Proceedings 10
PART 6 Default Proceedings 11
PART 7 Other Proceedings 12
PART 8 Status Conference and Track Selection 12
PART 9 Standard Case Management Track 17
PART 10 Alternative Dispute Resolution 18
PART 11 Settlement 20
PART 12 Directions - Variation, Default 21
PART 13 Certificate of Compliance 22
PART 14 Compliance Conference 23
PART 15 Default Conference 24
PART 16 Final Conference 25
PART 17 Not Ready List 29
PART 18 Inactive List of Default Proceedings 31
PART 19 Motions 32
PART 20 Adjournment 33
PART 1
INTRODUCTION
1 Differential Case Management
Practice Note 81 commenced on 31 January 1994. Its purpose was to inform the legal profession and the public how the Supreme Court would exercise its powers under the Supreme Court Act (in particular under s.76A) and the Rules, to implement in the Common Law Division a new system of case flow management known as "Differential Case Management" or "DCM".
Practice Note 81 will expire at the end of 1995 (refer Clause 6 thereof). Practice Note 87 extends DCM until 31 March 1996.
DCM under Practice Note 81 has been effective in improving the flow of cases through the court, but experience has revealed a number of ways in which it could be improved.
The Supreme Court intends to continue the system of Differential Case Management introduced by Practice Note 81, but with some changes to that system.
This Practice Note is to inform the legal profession and the public how the court will exercise its powers under the Supreme Court Act and the Rules to continue DCM. The Practice Note does not confer these powers, it merely explains how they will be exercised.
2 What is Differential Case Management?
DCM is a refinement of the Active Case Management System covered by Practice Note No. 68.
DCM is a system of individualised case management. It is designed to ensure equal access to court services so that cases are resolved justly and efficiently.
DCM is a programme for managing all cases, not just those that will go to trial. It is designed to promote the early settlement of cases. Cases that should have been resolved at an early stage often settle only at the door of the court or part way through a hearing. This involves an unacceptable waste of scarce resources and increases the cost of litigation.
For cases that cannot be settled, DCM is designed to reduce the time of the hearing, by narrowing the issues for trial.
3 Commencement of this Practice Note
This Practice Note replaces Practice Note 81 and Practice Note 87, and will apply from 1 April 1996.
4 Proceedings covered by DCM
4.1 From 1 April 1996, DCM applies to the following proceedings in the Common Law Division:-
(a) proceedings on foot at that date which were subject to DCM pursuant to Practice Note 81 or Practice Note 87;
(b) proceedings in which the plaintiff claims damages or possession of land, which are commenced, whether by statement of claim or by summons, on or after that date;
(c) other proceedings commenced, on or after that date, by statement of claim;
(d) proceedings transferred, on or after that date, from another court or from another division of the Supreme Court;
(e) any other proceedings the court directs it applies to;
(but, subject to paragraph (e) of this clause, does not apply to:-
(f) proceedings for defamation;
(g) proceedings in the construction list;
(h) proceedings commenced by statement of claim that name a place other than Sydney as the place of trial).
4.2 The court may, at any time after the commencement of proceedings:-
(a) on the application of a party to proceedings, direct that DCM apply to those proceedings (refer Part 7); or
(b) of its own motion, direct that DCM apply to a particular proceeding or to all proceedings in a category specified in such direction.
The circumstances in which the court may make such a direction cannot be defined exhaustively. However, the intention is that the power to direct that DCM apply to proceedings should generally be exercised only where it is shown that there is a need for early case management; it is not intended that applications should be made as a device to secure expedition. It is likely that the power may be exercised in respect of some proceedings commenced by summons (particularly proceedings under Proceeds of Crime legislation) which would not otherwise be subject to DCM.
5 How does DCM work?
DCM, as originally implemented by Practice Note 81, modified the then existing case management procedures (set out in Practice Note 68) by differentiating between cases according to their complexity and the need for pre-trial activity. Under DCM some cases receive more intensive management than others. As the essence of DCM is that each case is given only the necessary degree of management, the court seeks to place each case on an appropriate management track. These tracks are the Individual Track and the Special Track. How the court selects the appropriate track is described later in this Practice Note. Most cases do not require numerous direction hearings, but cases which should respond to more intensive management will receive closer supervision. This Practice Note continues that system but incorporates changes to improve its operation in the light of experience.
Plaintiffs who do not wish to take advantage of the benefits of Individual Case Management have the option of proceeding along the Standard Case Management Track.
6 Monitoring and reviewing the DCM system
This Practice Note applies to cases commenced before 1 January 1998. This "sunset clause" provides a date for appropriate review of the DCM system. A working party made up of representatives of the court and the legal profession will continue to monitor DCM during its operation.
PART 2
GENERAL
7 Interpretation
In this Practice Note:-
(a) default proceedings refers to proceedings commenced by statement of claim which contain only a claim or claims for one or more of the following:-
(i) a liquidated demand;
(ii) possession of land;
(iii) an order for interest under s.94 of the Supreme Court Act 1970;
(b) ordinary proceedings refers to proceedings which are not default proceedings and which are of a kind referred to in paragraph (b) or (c) of Clause 4.1;
(c) transferred proceedings refers to proceedings transferred from another court or from another division of the court (refer Clause 4.1(d));
(d) days or sitting days refers to court sitting days;
(e) election proceedings refers to proceedings in which the plaintiff has filed an election in the form of Appendix C to proceed on the Standard Case Management Track (refer Clause 33);
(f) a document in the nature of a Scott Schedule refers to a document prepared by a party which identifies each head of damage and each item under each head, and states the amount contended to be that which should be awarded (or, as appropriate, the range for which the party will contend) and where that is a calculated amount, details showing the source of the figures and how the calculation is made. Such documents when exchanged or served are not filed; and are not made available to the trial judge or master except with the consent of all parties or, at the end of the trial, in connection with any issue as to costs.
8 Commencing proceedings
8.1 To obtain the benefits of DCM, a plaintiff should, when possible, commence proceedings by statement of claim. However, DCM also applies to certain proceedings commenced by summons (refer Clause 4.1(b)). Where other types of proceedings are commenced by summons, the court may direct that DCM apply to those proceedings (refer Clause 4.2 and Part 7).
8.2 The originating process and pleadings should be as brief and precise as the nature of the case allows.
8.3 The court may appoint a Status Conference at any time.
8.4 In an urgent case, a party may file an application for an early Status Conference to be appointed (refer Appendix B).
9 Service of documents
9.1 For DCM to be as effective as possible, parties are expected to serve other parties with all relevant documents and information. In particular:-
(a) where a party files the party's DCM document, that party should serve it on all other parties (refer Clauses 18.1, 22, 24, 26.2 and 54.2(a), (b));
(b) where a party files an application for a Status Conference or an application to re-open the Status Conference, that party should serve it on all other parties prior to the date fixed for the Status Conference and in any event within two sitting days (refer Clauses 8.4, 33.4, 38.4, 38.5, 41.2, 41.3, 42, 43.2, 43.4, 54.2(b) and 61.4);
(c) a party whose action causes the court to appoint a Status Conference should serve notice of the appointment on all parties; where that party is not a plaintiff, the court will also give notice of appointment to other parties;
(d) where a party files an election to proceed on the Standard Case Management Track and receives from the registry the uniform directions, that party should serve a copy of the election and of the directions on all other parties within seven days.
9.2 Where a party would be expected to serve any document or notice, as indicated above, but does not do so, the court may make orders:-
(a) for payment of costs; and/or
(b) transferring the proceedings to the Not Ready List (refer Part 17); and/or
(c) otherwise as the court sees fit.
10 Witness statements
10.1.1 It should be understood that wherever, in circumstances referred to in any of Clauses 29.2, 37.2 or 46.3, the court directs that a party or all parties serve or file and serve witness statements, the purpose of giving such directions in such circumstances is to facilitate clarification of issues and realistic negotiations for settlement. Unless in any such circumstances the direction is expressed to be given pursuant to Part 36 Rule 4A, what will be required is a statement identifying:-
(a) the witness or witnesses whom the party expects to call in respect of the issue or issues to which the direction relates; and
(b) the substance of the evidence which each such witness is expected to give in respect of that issue or those issues, with sufficient particularity to fulfil the purpose for which the direction was given.
10.1.2 If a party fails to comply with any such directions, it may be anticipated that when the matter is next before the court, a direction will be given for the filing and serving of witness statements pursuant to Part 36 Rule 4A.
10.1.3 Where, at a Final Conference, a direction is made for the service of witness statements, such direction will be a direction given pursuant to Part 36 Rule 4A of the Supreme Court Rules and the provisions of that Rule will apply. Attention is directed to subrule (3)(a) of that Rule.
10.2.1 The giving of any such direction as is referred to in Clause 10.1 does not imply that the evidence in chief of any witness whose statement has been served would ordinarily be given by way of tender of that statement.
10.2.2 Where proceedings are before an arbitrator, the arbitrator may, with the consent of the parties, direct that the evidence in chief of any witness whose statement has been served, be given by way of tender of the statement.
10.2.3 Whether at a trial any evidence is given in that fashion will always be a matter for the discretion of the trial judge.
PART 3
THE DCM DOCUMENT
11.1 In relation to any party, the DCM document refers to the document which, by virtue of this Practice Note, may be required to be filed by that party.
11.2 The form and content of the DCM document are explained in Appendix A.
12 Filing the DCM document
12.1 Every party to proceedings should file the DCM document at the time or within the period specified in this Practice Note as appropriate to the particular proceedings.
12.2 Subject to the discretion of the court, a DCM document may be filed after the time so specified.
13 Urgent cases
13.1 Any party in any class of proceedings who files an application for an urgent Status Conference (refer Clause 8.4) should file the DCM document with the application, if the DCM document has not been previously filed.
13.2 Any such application not preceded by or accompanied by the DCM document will be referred to a registrar who will decide whether or not a Status Conference should be appointed. Accordingly, a party seeking an urgent Status Conference in such circumstances should lodge with the application an affidavit explaining why it is made without filing a DCM document.
14 Failure to file the plaintiff's DCM document
14.1 Proceedings are placed in the Not Ready list (refer Part 17) if the plaintiff does not file the DCM document within the period specified in this Practice Note as appropriate to the particular proceedings or specified in any direction of the court.
15 Failure by a party other than the plaintiff to file the DCM document
15.1 If a party other than the plaintiff does not file the DCM document within the period specified in this Practice Note as appropriate to the particular proceedings or specified in any direction of the court, the court (at the Status Conference or subsequently) makes appropriate orders, which may include an order for payment of costs.
16 Incomplete DCM document
16.1 Where a party is required to file the DCM document but a document or information is not available, that party may file with the DCM document a statement of the reasons for failure to comply (refer Clause 17.2).
17 Examination of the DCM document
17.1 When a party files the DCM document, it is examined in the registry.
17.2 If the plaintiff's DCM document is found to be inadequate or incomplete and no sufficient reason is disclosed for such deficiency (refer Clause 16.1), a requisition is sent to the plaintiff's solicitor (or to the plaintiff if acting in person).
17.3 If such requisition is not complied with within 20 sitting days of its issue, the appointment for Status Conference is vacated and the proceedings are placed in the Not Ready List (refer Part 17).
17.4 If the DCM document of a party other than the plaintiff is found to be inadequate or incomplete and no sufficient reason is disclosed for such deficiency (refer Clause 16.1), a requisition is sent to that party's solicitor (or to the party, if acting in person).
17.5 If such requisition is not complied with within 20 sitting days, the court (at the Status Conference or subsequently) makes appropriate orders, which may include an order for payment of costs.
PART 4
ORDINARY PROCEEDINGS
(Proceedings in which the plaintiff claims damages, whether for personal injuries or otherwise, and all other proceedings commenced by statement of claim which are not Transferred Proceedings or Default Proceedings.)
18 The plaintiff's DCM document
18.1 A plaintiff should file the DCM document at the same time as filing the originating process.
18.2 Proceedings are placed in the Not Ready List (refer Clauses 14.1 and 17.3, and Part 17) until:-
(a) the plaintiff files the DCM document; or
(b) another party takes steps to bring the matter before the court.
19 Appointment of Status Conference
19.1 Where the plaintiff files the DCM document without an election (refer Clause 33.1), the court appoints a Status Conference.
19.2 A Status Conference in ordinary proceedings (other than election proceedings) normally takes place between 75 and 90 sitting days after the plaintiff files the DCM document.
20 The DCM Document of other Parties
20.1 Each other party should file the DCM document not later than 20 sitting days before the date of the Status Conference.
PART 5
TRANSFERRED PROCEEDINGS
(Proceedings transferred from another court or from another division of the court).
21 DCM Documents
21.1 Where a transferred file is received, notice will be given by the court to all parties.
21.2 The plaintiff should file the DCM document within 20 days after receipt of the notice from the court.
21.3 Each other party should file the DCM document within 20 days of being served with notice of the Status Conference.
22 Appointment of Status Conference
22.1 Where proceedings are transferred to the Common Law Division from another division of the court or from another court, the court appoints a Status Conference upon filing of the plaintiff's DCM document.
22.2 In such a case the Status Conference normally takes place between 75 and 90 sitting days after the plaintiff files the DCM document.
PART 6
DEFAULT PROCEEDINGS
(As defined in Clause 7(a) of this Practice Note and in the Supreme Court Rules).
23 Appointment of Status Conference
23.1 The court appoints a Status Conference where a defence or cross-claim is filed in default proceedings and a Status Conference has not been appointed previously.
23.2 In such a case the Status Conference normally takes place 50 sitting days after the filing of the defence or cross-claim.
23.3 Where an order is made setting aside a judgment in default proceedings, the court appoints a Status Conference, which will normally take place between 75 and 90 sitting days after the order is made.
24 DCM Documents
24.1 The plaintiff should file the DCM document within 20 sitting days after being served with an appointment for Status Conference and a defence and/or cross-claim.
24.2 Each other party should file the DCM document not later than 20 sitting days before the date of the Status Conference.
25 Transfer to Inactive List
25.1 The court places the default proceedings in the Inactive List (refer Part 18) when:-
(a) 60 sitting days have elapsed since the commencement of default proceedings;
(b) no defence or cross-claim has been filed in the proceedings; and
(c) the proceedings have not been disposed of.
PART 7
OTHER PROCEEDINGS
26 Application under Clause 4.2
26.1 A party to proceedings may apply by notice of motion for a direction that DCM apply to those proceedings (but see the note to Clause 4.2).
26.2 The party should file the DCM document with the notice of motion.
26.3 If any such notice of motion is filed without the DCM document, the court may decline to hear the application until the DCM document is filed.
27 Directions under Clause 4.2
27.1 If the court directs that DCM apply to proceedings, the court may:-
(a) direct that a Status Conference take place;
(b) give directions for the filing of the DCM document of any party.
The provisions of Clauses 14-17 apply when any such direction is made.
27.2 In such a case, unless the court otherwise directs, the Status Conference takes place between 75 and 90 sitting days after the making of the direction that DCM apply to the proceedings.
28 Notices
28.1 The registry issues to all parties a notice of Status Conference together with a copy of the direction for filing of DCM documents.
PART 8
STATUS CONFERENCE AND TRACK SELECTION
29 Status Conference
29.1 All parties attend a Status Conference to conduct an in-depth review of the case. The orders and directions made at a Status Conference are designed to resolve the case as quickly as possible.
29.2 The tasks at a Status Conference include, but are not limited to:-
(a) considering whether the proceedings were appropriately brought in the Supreme Court or would more appropriately be heard in the District Court and making a consent order or giving directions accordingly;
(b) defining the matters in issue, including liability, by examining DCM documents; if the DCM documents do not clearly reveal the basis upon which liability is disputed, a direction may be given that (except where liability is admitted within a period specified in the direction) the defendant file witness statements or, if appropriate (for example, in possession matters), affidavits, to demonstrate that a genuine issue exists (refer Clause 10);
(c) considering whether there should be a separate trial of the liability issue held before trial of issues as to quantum; if it appears to the judicial officer who conducts the Status Conference that the case is suitable for such a separate trial, it is likely that the parties will be invited to consent to an order for separate trials; if such consent is not given, any party may apply to a judge or master for such an order;
(d) where there is more than one defendant, or where cross-defendants have been or appear likely to be joined, considering whether the just, efficient and early resolution of the proceedings would be assisted by a conference between defendants and/or cross-defendants, and if so, giving directions accordingly;
(e) directing the parties to the possibility of settlement, including ascertaining prospects for, and giving directions to promote, settlement (refer Part 11);
(f) considering whether, in the light of the material in the DCM document, settlement would be assisted by an early exchange of witness statements and, if so, giving appropriate directions;
(g) considering whether Alternative Dispute Resolution is suitable and, if so, giving appropriate directions (refer Part 10);
(h) establishing whether any party requires a trial by jury and, if so, whether the nature of the case makes it unsuitable for trial by jury;
(i) allocating proceedings to the appropriate case management track;
(j) in proceedings for possession of land, considering whether it would be appropriate (instead of allocating proceedings to a case management track) to give directions and to adjourn the Status Conference until after the time for compliance with those directions, with a view to then placing the matter directly in the Holding List without need for a Final Conference;
(k) making consent orders for the completion at the earliest possible time of interlocutory steps such as discovery, interrogatories, views, medical examinations etc;
(l) fixing a time or times within which any party may apply for any interlocutory order which cannot be made at the Status Conference because some other party declines to consent thereto;
(m) establishing whether the case is one in which any party is likely to wish to adduce expert evidence (other than medical evidence on quantum of damages); if it appears to the judicial officer that any party is likely to wish to rely on such evidence, it is likely that directions will be given for the early exchange of experts' reports (Rules, Part 36 Rule 13A) and/or expert certificates in accordance with the provisions of s.177 of the Evidence Act 1995;
(n) establishing whether the case is one in which any party is likely to wish to adduce evidence of the contents of any document (including any document that is in a foreign country - refer Evidence Act 1995, s.49) otherwise than by tendering the document in question (refer Evidence Act 1995, s.48); and if so, giving directions for notification of the method of proof proposed and service of any relevant copy, transcript, translation or other document, with due regard to the relevant provisions of Division 1 of Part 4.6 of the Evidence Act 1995;
(o) establishing whether the case is one in which any party is likely to wish to adduce evidence of the contents of any two or more documents which, because of their volume and complexity, will not be able to be conveniently examined at the trial unless adduced in the form of a summary (refer Evidence Act 1995, s.50); and, if so, giving directions for the service by that party of a copy of that summary and for examination and copying of the documents in question by each other party.
(p) considering whether, having regard to the nature of the case and the issues that appear to arise, and the submissions of the parties, it is appropriate (in order to secure the just, efficient and early resolution of the proceedings) to make directions in respect of any matter not referred to above and, if so, to make further directions accordingly;
(q) giving directions to ensure that the proceedings will be adequately prepared for the Final Conference within the time which the court fixes, which in the case of proceedings allocated to the Individual Case Management Track will be a time within 290 sitting days after track allocation.
30 Conduct of Status Conference
30.1 A judge, a master, or a registrar conducts a Status Conference.
30.2 At a Status Conference, the court may give directions or make orders to parties to file documents or provide any further information necessary.
30.3 It is expected that the parties will have discussed the case before the Status Conference; they are encouraged to bring to the Status Conference draft timetables for the future management of the case.
30.4 Where a Status Conference is conducted by a registrar, the registrar may, in case of recalcitrance or dilatoriness of any party or the legal representatives of any party, or for any other reason, adjourn the Status Conference to be resumed (on that day or subsequently) before a master or a judge so that appropriate orders outside the jurisdiction of a registrar can be made.
31 Adjournment of Status Conference
31.1 The court may adjourn a Status Conference for such time as is necessary to give parties time to comply with directions or orders;
31.2 In every case the court eventually adjourns the Status Conference generally. It may be resumed upon application of any party (refer Clause 42) prior to the compliance date (refer Clause 43.1).
32 Track selection at a Status Conference
32.1 At a Status Conference, on the basis of the information provided by all parties, the judge, master or registrar allocates proceedings to either:-
(a) the Individual Case Management Track: under which proceedings are managed according to directions appropriate to the specific case, as the court determines; or
(b) the Special Case Management Track: for proceedings of unusual urgency that warrant management in a particularly fast and cost-effective way; or for proceedings which, because of intrinsic complexity or multiplicity of parties or for any other good reason, are not likely to be able to be brought to trial within the time limit applicable to the Individual Case Management Track (Refer Clause 32.2(a)).
32.2 Where proceedings are allocated to the Individual Case Management Track, the court:-
(a) makes orders and gives directions so that in the shortest possible time, being a time within 290 sitting days after track allocation, the matter is ready for a Final Conference (refer Part 16);
(b) directs the plaintiff to file and serve a Certificate of Compliance in the form of Appendix D on or before the date specified in that direction (refer Clause 43).
32.3 A party to proceedings that have been allocated to the Individual Case Management Track may apply to transfer the proceedings to the Special Case Management Track, and may apply to re-open the Status Conference for that purpose (refer Clause 42);
32.4 Where proceedings are allocated to the Special Case Management Track, the court where practicable nominates the trial judge and adjourns the Status Conference to be resumed before that judge.
32.5 Where proceedings are allocated to the Special Case Management Track, the court may:-
(a) make orders and give directions to lead to the earliest possible identification of issues, and the prompt and effective preparation of the case;
(b) adjourn the Status Conference from time to time until the court is satisfied the proceedings are ready to be assigned a hearing date,
and may then:-
(c) direct the plaintiff to file and serve a Certificate of Compliance in the form of Appendix D between certain dates; or
(d) include the proceedings in the Holding List, or refer them to the List Judge to appoint a special fixture, if the court is satisfied that the proceedings are ready to be assigned a hearing date.
PART 9
STANDARD CASE MANAGEMENT TRACK
33 Selection of the Standard Case Management Track
33.1 Proceedings are placed on the Standard Case Management Track if the plaintiff, when filing the DCM document, files an election (in the form of Appendix C) to proceed on the Standard Case Management Track.
33.2 When a plaintiff files an election to proceed on the Standard Case Management Track, the court issues a notice that contains the uniform directions, and assigns to each a date for compliance. The plaintiff serves this notice on all parties.
33.3 The uniform directions include a direction that the plaintiff file and serve a Certificate of Compliance in the form of Appendix D on or before the day which is 340 sitting days after filing the election. (A copy of the uniform directions may be obtained free of charge on application to the registry).
33.4 Any party who has filed the DCM document may apply for a Status Conference (refer Clauses 8.3 and 41).
34 Status Conference
34.1 Where, in a matter proceeding on the Standard Case Management Track, a Status Conference is appointed, the court may, at the Status Conference, (refer Part 8), allocate the proceedings to the Individual Case Management Track or to the Special Case Management Track, and give directions accordingly, or may allow the proceedings to remain on the Standard Case Management Track, or may place the proceedings in the Not Ready List (refer Part 17).
PART 10
ALTERNATIVE DISPUTE RESOLUTION
35 Consideration of Alternative Dispute Resolution at Status Conference
35.1 In the course of the Status Conference and at every resumption thereof, the court considers whether the proceedings are suitable for Alternative Dispute Resolution (ADR).
35.2 ADR includes:-
(a) mediation in accordance with the provision of Part 7B of the Supreme Court Act and Part 72C of the Supreme Court Rules or otherwise;
(b) neutral evaluation in accordance with Part 7B of the Act and Part 72C of the Supreme Court Rules or otherwise;
(c) arbitration pursuant to the provisions of s.76B of the Supreme Court Act and Part 72B of the Supreme Court Rules.
36 Mediation or Neutral Evaluation
36.1 In terms of Part 72C Rule 2, the Status Conference will ordinarily be the first occasion when proceedings are before the court for directions.
36.2 The court may at the Status Conference require statements by each party as to the matters referred to in that Rule and, if the matter appears to the court to be appropriate for resolution by either such process, will endeavour to secure the consent of the parties to a referral of the proceedings for mediation or neutral evaluation.
36.3 If the parties consent to the referral and agree as to who is to be the mediator or evaluator for the proceedings, the court may give directions including a timetable to enable parties to be prepared for mediation or neutral evaluation
37 Arbitration
37.1 Where proceedings are a claim for damages in respect of personal injuries or in respect of the death of any person, the court will, at the Status Conference, refer the proceedings for arbitration by a single arbitrator, unless it appears to the court that there is good reason why the matter should not be the subject of arbitration.
37.2 Where the court refers proceedings for arbitration, the court may give directions for the conduct of the arbitration which may include:-
(a) an order or direction under Part 72B Rule 2(3) or (4);
(b) directions for the exchange of a document in the nature of a Scott Schedule (refer Clause 7(f);
(c) directions for the exchange of witness statements (refer Clause 10).
38 Subsequent consideration of ADR
38.1 If, at the time of the first Status Conference, the court considers that the information available to it and to the parties is insufficient for a decision as to whether the proceedings are suitable for ADR, the court may direct that, at such time as the court directs (which might be, for example, after discovery and inspection of documents, or after answers to interrogatories, or after the exchange of medical and other expert reports), the parties confer upon the question whether the proceedings are suitable for reference to ADR.
38.2 Where the court directs that such conference take place, it may also direct that the plaintiff file, within such time after the conference as the court directs, a joint memorandum (signed by the solicitor for each party) setting out the attitude (as expressed at the conference) of each party respectively as to:-
(a) mediation;
(b) neutral evaluation;
(c) arbitration,
and whether or not any agreement for referral to ADR was reached.
38.3 Where the parties consent to referral of the proceedings for mediation or neutral evaluation and agree as to who is to be the mediator or evaluator, or where the parties agree that the proceedings should be referred for arbitration, the parties may file an appropriate consent order for such referral, which may include agreed directions for the conduct thereof, and the court will order such referral accordingly.
38.4 Where the parties agree to the referral of the proceedings for ADR, but are unable to agree upon directions for the conduct of ADR, either party may apply on two sitting days' notice to re-open the Status Conference as an "ADR Status Conference" (refer Appendix B).
38.5 Where one party consents to referral of the proceedings for arbitration, but is not able to obtain the consent of all other parties thereto, that party or any party may apply on two sitting days' notice to re-open the Status Conference as an "ADR Status Conference" (refer Appendix B).
38.6 In the circumstances which Clauses 38.4 and 38.5 describe, the resumed Status Conference will be listed as an "ADR Status Conference" and will take place as soon as possible, and normally within five sitting days of the filing of the application.
PART 11
SETTLEMENT
39 Promotion of settlement
39.1 The majority of proceedings commenced in the court are resolved by settlement, whether or not assisted by some form of ADR.
39.2 A principal purpose of DCM is to promote the early settlement of those cases which are destined to be settled in any event, in order to avoid waste of scarce resources and to contain or reduce the cost of litigation.
39.3 Accordingly, from the commencement of the Status Conference, the court will be concerned to encourage the parties to discuss settlement and will, where appropriate, make specific directions designed to promote settlement.
40 Directions to promote settlement
40.1 It may be anticipated that directions given at a Status Conference will include directions that, at an appropriate point during the progress of the case (for example, after inspection of documents, answers to interrogatories, exchange of medical or other expert reports or as the case may be), and, if appropriate, from time to time:-
(a) the parties exchange written offers of settlement compiled as a document in the nature of a Scott Schedule (refer Clause 7(f));
(b) that the legal representatives of the parties meet to discuss settlement (which may include a requirement that the parties attend such settlement conference);
(c) that the parties file, within a time specified in the direction, a joint memorandum confirming compliance with directions given in accordance with paragraphs (a) and (b) of this Clause.
PART 12
DIRECTIONS - VARIATION, DEFAULT
41 Variation of directions and timetable
41.1 Case management directions, whether given at the Status Conference, or issued automatically in respect of a matter proceeding on the Standard Case Management Track, and times set for compliance with any direction, may be varied:-
(a) by consent of all parties, so long as such variation does not extend the time for compliance with any direction beyond the compliance date;
(b) by the court.
41.2 When any party seeks a variation of the directions or timetable which is not (or by reason of Clause 41.1(a) cannot be) consented to by all other parties, the party may apply to re-open the adjourned Status Conference (refer Clause 42) or, in the case of proceedings on the Standard Case Management Track, may apply for a Status Conference (refer Clauses 8.3 and 33.4).
41.3 Where any party is in default in timely compliance with any direction, any party may apply to re-open the adjourned Status Conference (refer Clause 42) or, in the case of proceedings on the Standard Case Management Track, may apply for a Status Conference (refer Clauses 8.3 and 33.4).
42 Re-opening the Status Conference
42.1 An application to re-open a Status Conference is made by filing an application in the form of Appendix B after having given at least two sitting days' notice to all other parties.
42.2 Upon the filing of an application to re-open a Status Conference, the court appoints the earliest possible date for the resumption of the Status Conference.
42.3 Where a Status Conference is re-opened, the court makes appropriate orders which may include:-
(a) variation of directions previously given;
(b) extension of time for compliance with directions previously given;
(c) further directions;
(d) extension of the time for filing a Certificate of Compliance;
(e) transfer of proceedings to another track;
(f) an order transferring the proceedings to the Not Ready List (refer Part 17);
(g) an order striking out any pleading of a party in default; and/or
(h) orders for the payment of costs.
42.4 However, the principal objective at any re-opened Status Conference is to bring the case to readiness at the earliest possible date and the court does not make orders, other than directions aimed at securing that objective, except upon sufficient affidavit evidence.
PART 13
CERTIFICATE OF COMPLIANCE
43 Filing of Certificate of Compliance
43.1 The plaintiff should file a Certificate of Compliance within the period and on or before the last day specified in any relevant direction. That last day is known as "the compliance date".
43.2 The plaintiff may (if in a position to do so - see Clause 42.3 and Appendix D) file the Certificate of Compliance before the compliance date, but (except in the case of proceedings for possession of land) may not file that certificate earlier than 150 days after track allocation unless the court grants leave. A plaintiff who seeks such leave may apply to re-open the Status Conference for that purpose (refer Clause 42).
43.3 Where a Certificate of Compliance is filed, it is examined in the registry to ensure that it complies in all respects with the requirements of Appendix D.
43.4 Where a plaintiff is or will be unable to file a Certificate of Compliance, whether because of the plaintiff's own failure or inability to comply with a direction previously given, or because of the failure of any other party to comply with a direction previously given, or because, although all parties have complied with directions previously given, the matter is not in fact ready for a Final Conference, the plaintiff should apply to re-open the Status Conference (refer Clause 42).
44 Appointment of Final Conference
44.1 Where a Certificate of Compliance is filed as directed, the court appoints a Final Conference (refer Part 16).
45 Failure to File a Proper Certificate of Compliance
45.1 If a Certificate of Compliance is not filed as directed, or if a Certificate of Compliance which is filed does not comply in all respects with the requirements of Appendix D, the proceedings are listed for a Compliance Conference (refer Part 14).
PART 14
COMPLIANCE CONFERENCE
46.1 If a Compliance Conference is appointed, it will take place between 20 and 40 sitting days after the date the Certificate of Compliance should have been filed.
46.2 A Compliance Conference is usually conducted by a registrar but may be conducted by a judge or a master.
46.3 At a Compliance Conference, the conduct of the parties and their solicitors concerning the preparation of the proceedings is examined and appropriate orders are made, which may include:-
(a) costs orders;
(b) further directions;
(c) where it appears that a party has wilfully refrained from compliance with any directions and the court is of the view that that party is seeking to avoid or delay a trial of the liability issue, a direction for the filing and service by that party of witness statements relevant to liability (refer Clause 10).
46.4 The main purpose of a Compliance Conference is to bring a case to a Final Conference as early as possible, and if possible, within the original time frame.
46.5 If at the Compliance Conference the proceedings are found to be ready for hearing, notwithstanding that a Certificate of Compliance was not filed as directed, the Conference may go ahead as a Final Conference; if that is not practicable, the court appoints a Final Conference at the earliest possible date.
46.6 If at the Compliance Conference it is found that the proceedings cannot be made ready for hearing in accordance with the track to which they have been allocated and the directions given, other orders may be made including:-
(a) referral to a Default Conference (refer Part 15);
(b) further directions and the setting of a new compliance date;
(c) orders for payment of costs.
PART 15
DEFAULT CONFERENCE
47.1 A Default Conference is conducted by a judge or master.
47.2 Orders may be made including:-
(a) directions to enable the matter to proceed to an early Final Conference;
(b) loss of priority;
(c) transfer of the proceedings to the Not Ready List (Refer Part 17);
(d) dismissal of the proceedings;
(e) where a party other than the plaintiff is in default, striking out any pleading;
(f) where a party other than the plaintiff is in default, excluding all or some particular evidence on the issue to which the default relates;
(g) costs orders.
PART 16
FINAL CONFERENCE
48 Final Conference
48.1 After a Certificate of Compliance has been filed, all parties attend a Final Conference to see if the case can be disposed of, or to set the case down for trial.
49 Date of Final Conference
49.1 When proceedings are allocated to the Individual or Special Case Management Tracks, a Final Conference normally takes place between 20 and 40 sitting days after filing a Certificate of Compliance, and no later than 290 sitting days after the Status Conference.
49.2 In election proceedings allocated to the Standard Case Management Track, a Final Conference will not take place earlier than 365 sitting days after the filing of the election.
50 Conduct of Final Conference
50.1 Because adequate time is given to prepare cases, Final Conferences are adjourned only in exceptional circumstances.
50.2 Parties should attend a Final Conference in person.
Note: If the plaintiff does not attend the Final Conference, the court transfers the matter to the Not Ready List (Refer Part 17).
If a party other than the plaintiff does not attend a Final Conference, the court makes such order as is appropriate, which may include, in addition to costs orders, orders striking out any pleading of any party in default, and orders for judgment accordingly.
Where a party is a company, this clause should be understood as requiring the attendance of an officer of the company with authority to give instructions in respect of the matter.
Where the proceedings are conducted on behalf of any party by an insurer, this clause should be understood as requiring attendance at the Conference of the responsible officer of the insurer, being a person with authority to negotiate settlement. The registrar may dispense with the attendance of any officer of the insurer if satisfied that the person representing that insurer at the conference is adequately instructed and has immediate telephone access to the responsible officer of the insurer.
50.3 At a Final Conference, the court again explores prospects of settlement or of disposal of proceedings by Alternative Dispute Resolution, if available. The Final Conference is an appropriate time to make offers of compromise under Part 22 of the Rules.
50.4 If settlement negotiations are unsuccessful, all parties should sign a clear, concise, joint statement of the specific matters of fact and of law that are really in dispute. Broad statements such as "liability, contributory negligence and quantum" will not be accepted. Each party is expected to bring to the Final Conference a draft of a suitable joint statement of the matters in dispute (eg. whether defendant medical practitioner should have prescribed a CAT scan; whether there was a foreseeable risk that the plaintiff might be injured if obliged to lift the object without mechanical aids).
50.5 If it appears at a Final Conference that proceedings are not capable of being settled, the court:-
(a) considers the state of preparation;
(b) confirms compliance with directions;
(c) ascertains:-
(i) whether any party proposes to adduce evidence pursuant to the provisions of s.63 or s.64 of the Evidence Act 1995 or evidence to which s.97 or s.98 of that Act apply; and
(ii) if so, whether or not any notice required under s.67 or s.99 of that Act has been given;
(d) may make orders under Part 36 Rule 13D of the Rules;
(e) ascertains:-
(i) whether any party proposes to make, or has made, to any other party, a request pursuant to s.167 of the Evidence Act 1995; and
(ii) whether any party proposes to seek leave to make any such request, notwithstanding that the 21 day period specified in s.168 of the Evidence Act has expired;
(f) determines whether any party has, without reasonable cause, failed or refused to comply with any such request;
(g) makes orders under s.168(2), (4) or (7) or under s.169(1)(a), (b) or (d) of the Evidence Act 1995;
(h) considers whether, by reason of any request, proposed application for leave, or alleged failure or refusal to comply with any such request, the matter is not ready for hearing, and should be referred for a Default Conference;
(i) may (in exceptional circumstances and if practicable) set short time limits for compliance, prior to call-up, with any directions not yet complied with. NOTE: If non-compliance cannot be remedied within that time, the proceedings will be referred for a Default Conference (refer Part 15);
(j) identifies and attempts to narrow the issues;
(k) secures and records admissions;
(l) gives directions for final preparation, including steps to shorten the trial.
51 Directions at Final Conference
51.1 Parties should anticipate that the directions for final preparation given at a Final Conference are likely to include:-
(a) directions for the exchange of an updated document in the nature of a Scott Schedule (refer Clause 7(f));
(b) directions for the service by each party of copies of all documentary exhibits proposed to be relied upon, and the service subsequently by each other party of a notification of any objection thereto and the grounds thereof, to the intent that prior to trial a bundle of agreed exhibits for use at trial will be marked appropriately;
(c) directions pursuant to s.50 of the Evidence Act 1995 for the giving of the evidence of the contents of any documents in the form of a summary;
(d) directions pursuant to Part 36 Rule 4A of the Supreme Court Rules for the service of witness statements, first by the plaintiff and thereafter by the defendant;
(e) where any party proposes to prove any matter by affidavit or written statement pursuant to the provisions of s.170 of the Evidence Act 1995, directions for the service of a copy of such affidavit or statement;
(f) directions to file and serve not later than one week before the date fixed for trial, a "judge's brief" containing:-
(i) a list of matters agreed between the parties;
(ii) a detailed statement of the issues remaining;
(iii) copies of medical reports;
(iv) copies of non-medical expert reports;
(v) copies of all other agreed exhibits;
(vi) witness statements (refer Clause 10); but only if, at the Final Conference or previously, such have been directed (pursuant to Part 36 Rule 4A of the Supreme Court Rules) to be served, and only if all parties consent to such witness statements being included in the judge's brief;
(vii) a statement of each party, identifying so much of the evidence to be adduced on behalf of any other party, contained in any report, statement or other document which that other party has served, to which objection will be taken at the trial, and the grounds of such objection;
(viii) copy of any summary prepared pursuant to s.50 of the Evidence Act 1995;
(ix) copy of any affidavit or statement pursuant to s.170 of the Evidence Act 1995.
Directions in any proceedings will be only those appropriate to the nature, complexity and state of preparation of the proceedings.
52 Setting proceedings down for trial
52.1 The court exercises its power, under Part 33 Rule 8, to set the matter down for trial, only if at the Final Conference the court is satisfied that the proceedings:-
(a) are ready for hearing; or
(b) will be ready by time of call-up by compliance with directions given.
52.2 If the court finds that the proceedings are not ready for hearing only because of the defendant's default, the court considers whether the defence should be struck out and the proceedings be fixed:-
(a) for hearing undefended; or
(b) on the issue of damages only;
and makes appropriate orders.
52.3 Lack of preparation that can be remedied before the likely hearing date is not allowed to delay or halt proceedings.
52.4 If the court determines that proceedings should be set down for trial, the court:-
(a) includes the proceedings in the Holding List; or
(b) includes the proceedings in the Long Matters List; or
(c) refers the proceedings to the List Judge to appoint a special fixture.
PART 17
NOT READY LIST
53.1 The Not Ready List is designed to ensure that cases commenced in the court are under a constant process of review, with the aim of disposing of them as soon as possible.
53.2 The circumstances in which proceedings may be placed in the Not Ready List are to be found in Clauses 9.2, 14.1, 17.3, 18.2, 34.1, 42.3, 47.2, 50.2 and 61.6.
54 Notice of proceedings being in the Not Ready List
54.1 (a) Where a case has been in the Not Ready List for six months, the court sends the plaintiff's solicitor a dated notice for the plaintiff, stating that the case has been placed in the Not Ready List, and the consequences of this.
(b) The plaintiff's solicitor should give this notice to the plaintiff within 20 sitting days of the date on the notice, and file an affidavit stating that this notice has been given to the plaintiff.
(c) If an affidavit is not filed within 20 sitting days of the date on the notice, the court sends a similar notice to the plaintiff.
54.2 Proceedings remain in the Not Ready List until:-
(a) the plaintiff files the DCM document;
(b) any other party files the DCM document with an application for a Status Conference; or
(c) the court otherwise orders.
54.3 The court does not appoint a Status Conference or take any other step to bring the proceedings to a hearing as long as they remain in the Not Ready List.
55 Call-over
55.1 When proceedings have remained in the Not Ready List for over 12 months, they are included in a call-over conducted by the List Judge or a master. Notice of the call-over is given to all solicitors on the record, and to the plaintiff personally. The notice specifies the date, purpose and possible consequences of the call-over.
55.2 At the call-over, the List Judge or the master makes orders and gives directions in order to achieve the just, efficient and cheap disposal of the proceedings; such orders may include, where appropriate:-
(a) orders for payment of costs;
(b) an order dismissing the proceedings.
55.3 If proceedings in the Not Ready List are dismissed, the court sends to the plaintiff and the plaintiff's solicitor a notice stating that the proceedings have been dismissed, and the consequences of this.
56 Removal of proceedings from the Not Ready List
56.1 Where a matter is removed from the Not Ready List because:-
(a) the plaintiff files the DCM document;
(b) any other party files the DCM document with an application for a Status Conference; or
(c) the court so orders at a call-over of the Not Ready List (refer Clause 55),
the court will appoint a Status Conference.
56.2 In any such circumstances, unless the court otherwise orders, the Status Conference normally takes place between 75 and 90 sitting days after the removal of the proceedings from the Not Ready List.
PART 18
INACTIVE LIST OF DEFAULT PROCEEDINGS
57.1 The Inactive List allows the court to monitor its potential case load by reviewing outstanding default proceedings; and to ensure that inadvertent delays do not arise.
57.2 The circumstances in which the court places default proceedings in the Inactive List are set out in Clause 25.
58 Notice of proceedings being in the Inactive List
58.1 (a) Twenty sitting days prior to the placing of proceedings in the Inactive List (refer Clause 25), the court sends to the plaintiff's solicitor a dated notice stating that the proceedings will be placed in the Inactive List and the consequences of this.
(b) The plaintiff's solicitor should give a copy of this notice to the plaintiff within 20 sitting days of the date on the notice, and within that period file an affidavit stating that the notice has been given to the plaintiff.
(c) The court sends a similar notice to the plaintiff if this affidavit is not filed within 20 sitting days of the date on the notice.
58.2 While proceedings remain in the Inactive List:-
(a) the court does not appoint a Status Conference or take any other step to bring the proceedings to a hearing;
(b) the plaintiff should not file a document or take any other step in the proceedings (other than the making of a motion on notice) without paying the prescribed fee.
59 Removal of proceedings from the Inactive List
59.1 Proceedings are removed from the Inactive List when a document is filed or another step is taken in the proceedings. However, the proceedings will be returned to the Inactive List unless:-
(a) a Status Conference is appointed; or
(b) proceedings are wholly disposed of within 60 sitting days.
59.2 When proceedings are in the Inactive List, if no affidavit of service of the statement of claim has been filed within two years after the commencement of proceedings, the court may give each party notice that the proceedings will be dismissed unless, within a given time:-
(a) an affidavit of service of the statement of claim is filed;
(b) a defence or cross-claim is filed; or
(c) on motion, a party satisfies the court that the proceedings should not be dismissed.
PART 19
MOTIONS
60 Motions - when filed
60.1 To keep cases within acceptable time limits, and to ensure timetables are maintained, motions should be served as early as possible.
60.2 If a Certificate of Compliance must be filed in proceedings by a certain date, a party shall not, without leave of the court, move the court for any order in the proceedings after that date.
61 Notices of motion
61.1 A notice of motion should be filed and served not less than three sitting days before the date fixed for the motion.
61.2 If proceedings have been allocated to a track, any notice of motion filed therein should bear a note at the foot of the page stating:-
(a) the track; and
(b) if a Certificate of Compliance must be filed by a certain date, that requirement and date.
A notice of motion that does not bear such a note may be rejected.
61.3 A notice of motion filed between the appointment and the conclusion of a Status Conference is returnable in an Applications List.
61.4 Upon the filing of such a notice of motion, the Status Conference is suspended until, after the motion has been disposed of, a party applies to re-open the Status Conference (refer Clause 42).
61.5 The judge, master, or registrar by whom the motion is heard may specify a time before which an application to re-open the Status Conference may not be filed.
61.6 If, after the motion has been disposed of, no application to re-open the Status Conference is filed within 20 sitting days, the proceedings are transferred to the Not Ready List (refer Part 17).
PART 20
ADJOURNMENT
62.1 To ensure efficient use of court time, proceedings fixed for trial will not normally be adjourned unless special circumstances have arisen which could not have been foreseen.
62.2 An application for adjournment requires supporting affidavits.
62.3 An application for adjournment will not usually be granted unless the party on whose behalf the application is made is present at the time the application is made or has sworn an affidavit verifying that that party is aware of the reasons for the application and identifying those reasons.
Chief Justice
8 December 1995
APPENDIX A - (Refer Clause 11.2)
Each party files the DCM document in order to provide the court with information which will ensure that the Status Conference is efficient and effective (refer Clause 28).
A DCM document is not a pleading. It may be amended at any time without leave, but any amendment may be taken into consideration upon the question of costs.
A statement in a DCM document about the expected need for discovery or interrogatories does not preclude a later application in accordance with the rules for such interlocutory steps (but refer Part 12).
A party is not required to make enquiries in an attempt to identify any person from whom any other party may be entitled to contribution or indemnity (refer Clauses 1.1.4, 2.1.4, 3.1.4, 4.1.4 on this Appendix) or any insurer by whom any other party may be insured in respect of the claim against it (refer Clauses 1.1.5, 2.1.5, 3.1.5, 4.1.5 of this Appendix) but is required to disclose such information of that sort as is in fact known to that party.
In addition to the matters specifically required by this Practice Note to be included in the DCM document, any party may include in that document, for the information of the court and the other parties, any further information which that party wishes to be taken into account for any purpose at the Status Conference.
1 Plaintiff's DCM document
1.1 The plaintiff's DCM document is to contain:-
1.1.1 a statement by the plaintiff's solicitor (or by the plaintiff, if in person) that he/she is aware of the need to serve the DCM document and the notice of Status Conference on each other party (refer Clause 9);
1.1.2 a list of contents;
1.1.3 a concise narrative of the facts the plaintiff intends to prove on the issue of liability, so drafted as to expose the specific matters of fact upon which liability is likely to depend;
1.1.4 a description (name, place of residence, place of business and occupation) of any person from whom the plaintiff believes, upon his or her then state of knowledge, that the defendant may be entitled to contribution or indemnity if the plaintiff obtains judgment against the defendant; the plaintiff must include this information even if he or she currently does not intend to join this person as an additional defendant;
1.1.5 the identity of any insurer by whom the plaintiff knows or believes that the defendant is or may be entitled to indemnity in respect of his or her alleged liability to the plaintiff;
1.1.6 where the plaintiff's claim arises out of an event that has been the subject of previous proceedings, such as a prosecution, a coronial inquest or an inquiry - a statement giving:-
(a) the title of the proceedings;
(b) the date and place of the proceedings;
(c) the name of the judicial officer or other person who conducted the proceedings;
1.1.7 where the plaintiff's claim is for damages for personal injuries:-
(a) a statement about any other proceedings the plaintiff has brought in any court for damages for personal injuries which may be relevant to the assessment of damages in the proceedings in which the DCM document is filed. The statement must mention the other proceedings even if they are not related to the event out of which the present proceedings arise, and must include:-
the parties to the other proceedings;
the court in which the other proceedings are on foot or were determined; and
the file number of the other proceedings;
(b) full particulars of any other accident or injury the plaintiff has suffered which is not the subject of a claim in the proceedings in which the DCM document is to be filed and which may be relevant to the assessment of damages;
1.1.8 where the plaintiff is represented by a solicitor, a statement by the solicitor setting out the solicitor's opinion about:-
(a) whether it is likely that discovery of documents will be needed;
(b) whether it is likely that interrogatories will be needed and, if so, why;
(c) whether it is likely that the plaintiff will require expert evidence (other than medical evidence on quantum of damages) and, if so, in what area of expertise;
(d) any special feature of the plaintiff's claim that might affect the complexity or length of the trial; and
(e) whether the exchange of witness statements or affidavits would be likely to assist the early resolution of the matter;
1.1.9 a statement of why:-
(a) the judgment is likely to exceed $150,000; or
(b) the action is otherwise appropriate to be brought in the Supreme Court (for example: that it is a test case, a matter of public interest, a claim for professional negligence or otherwise affecting the personal reputation of one or other of the parties);
1.2 Where the plaintiff's claim is for damages for personal injury or in respect of the death of any person, the plaintiff is to annex to the DCM document:-
1.2.1 a copy of any police report concerning the event out of which the claim arises;
1.2.2 a copy of any relevant report concerning the accident or injury prepared by an officer of:-
(a) the Department of Industrial Relations Employment Training and Further Education;
(b) the Department of Mineral Resources; or
(c) the WorkCover Authority of New South Wales;
1.2.3 a statement setting out the best particulars that the plaintiff is then in a position to give of the damages claimed, and, where the claim is for damages for personal injury, copies of medical reports of all doctors who have treated the plaintiff up to that time;
1.2.4 a list of any relevant photographs, films (other than x-ray films) or video tapes in the possession of the plaintiff and a statement of the arrangements proposed by the plaintiff for the viewing thereof by any other party.
2 Defendant's DCM document
2.1 The defendant's DCM document is to contain:-
2.1.1 a statement by the defendant's solicitor (or by the defendant, if in person) that he/she is aware of the need to serve the DCM document on each other party (refer Clause 9);
2.1.2 a list of contents;
2.1.3 a concise narrative of the facts the defendant intends to prove on the issue of liability, including contributory negligence, so drafted as to expose the specific matters of fact upon which liability is likely to depend;
2.1.4 a description (name, place of residence, place of business and occupation) of any person from whom the defendant believes, upon his or her then state of knowledge, that the defendant may be entitled to contribution or indemnity if the plaintiff gains judgment against the defendant; the defendant must include this information even if he or she currently does not intend to join this person as an additional defendant;
2.1.5 the identity of any insurer by whom the defendant is or may be entitled to indemnity in respect of his or her alleged liability to the defendant;
2.1.6 where the defendant is represented by a solicitor, a statement by the solicitor setting out the solicitor's opinion about:-
(a) whether it is likely that discovery of document will be needed;
(b) whether it is likely that interrogatories will be needed and if so, why;
(c) whether it is likely that the defendant will require expert evidence (other than medical evidence on quantum of damages) and if so, in what area of expertise;
(d) any special feature of the plaintiff's claim or the defendant's defence that might affect the complexity and length of the trial; and
(e) whether the exchange of witness statements or affidavits would be likely to assist the early resolution of the matter;
2.1.7 any information of the type referred to in Clause 1.1.5 of this Appendix that the defendant knows;
2.1.8 a statement of any reason for which it will be submitted that the action is not appropriate to be brought in the Supreme Court.
2.2 Where the plaintiff's claim against the defendant is for damages for personal injuries, the defendant is to annex to the DCM document:-
2.2.1 a copy of any claim form or written report of the injury or accident the defendant or its insurer has received from the plaintiff;
2.2.2 where the defendant or its insurer has interviewed the plaintiff, and one of the purposes of that interview was to prepare for potential or existing litigation, a copy of any statement made by the plaintiff in that interview, relating to liability or contributory negligence in relation to the claim;
2.2.3 any documents referred to in Clauses 1.2.1 and 1.2.2 of this Appendix in the possession of the defendant that have not already been served by any other party;
2.2.4 copy of any medical certificate or medical report held by the defendant, issued by a doctor who has treated the plaintiff in respect of the injuries alleged in the statement of claim; and
2.2.5 a list of relevant photographs, films (other than x-ray films) or video tapes (excluding such as relates only to the issue of damages) in the possession of the defendant, and a statement of the arrangements proposed by the defendant for the viewing thereof by any other party.
Note: where the defendant claims that there is a legitimate forensic reason why the existence or contents of any such medical certificate, medical report, photograph, film or video tape should not be disclosed prior to trial, the defendant may, prior to the Status Conference, apply ex parte (without filing a notice of motion) to a registrar in chambers, upon an affidavit of the relevant circumstances, for an order that the same be not disclosed in the DCM document. The applicant for such an order shall produce to the registrar a draft order for signature, which order (if made) having been made, should be delivered to the applicant and not retained in the court file.
3 Cross-claimant's DCM document
3.1 A cross-claimant's DCM document is to contain:-
3.1.1 a statement by the cross-claimant's solicitor (or by the cross-claimant, if in person) that he/she is aware of the need to serve the DCM document on each other party (refer Clause 9);
3.1.2 a list of contents;
3.1.3 a concise narrative of the facts the cross-claimant intends to prove on the issue of the cross-defendant's liability, so drafted as to expose the specific matters of fact upon which liability is likely to depend;
3.1.4 a description (name, place of residence, place of business and occupation) of any person from whom the cross-claimant believes that the cross-defendant may be entitled to contribution or indemnity if the cross-claimant gains judgment against the cross-defendant; the cross-claimant must include this information even if he or she currently does not intend to join this person as an additional cross-defendant;
3.1.5 the identity of any insurer by whom the cross-claimant knows or believes that the cross-defendant is or may be entitled to indemnity in respect of his or her alleged liability to the cross-claimant or the plaintiff;
3.1.6 where the cross-claimant is represented by a solicitor, a statement by the solicitor setting out the solicitor's opinion about:-
(a) whether it is likely that discovery of documents will be needed;
(b) whether it is likely that interrogatories will be needed and, if so, why;
(c) whether it is likely that the cross-claimant will require expert evidence (other than medical evidence on quantum of damages) and, if so, in what area of expertise;
(d) any special feature of the plaintiff's claim or the cross-claimant's claim that might affect the complexity or length of the trial; and
(e) whether the exchange of witness statements or affidavits would be likely to assist the early resolution of the matter.
3.1.7 any information of the type referred to in Clause 1.1.5 of this Appendix that the cross-claimant knows;
3.1.8 where the plaintiff's claim is for damages for personal injury or in respect of the death of any person, list of relevant photographs, films (other than x-ray films) or video tapes (excluding such as relates only to the issue of damages) in the possession of the cross-claimant, and a statement of the arrangements proposed for the viewing thereof by any other party.
Note: where the cross-claimant claims that there is a valid forensic reason why the existence or contents or any such photograph, film or video tape should not be disclosed prior to trial, the cross-claimant may, prior to the Status Conference, apply ex parte (without filing a notice of motion) to a registrar in chambers, upon an affidavit of the relevant circumstances, for an order that the same be not disclosed in the DCM document. The applicant for such an order shall produce to the registrar a draft order for signature, which order (if made) having been made, should be delivered to the applicant and not retained in the court file.
4 Cross-defendant's DCM document
4.1 A cross-defendant's DCM document is to contain:-
4.1.1 a statement by the cross-defendant's solicitor (or by the cross-defendant, if in person) that he/she is aware of the need to serve the DCM document on each other party (refer Clause 9);
4.1.2 a list of contents;
4.1.3 a concise narrative of the facts the cross-defendant intends to prove on the issue of liability, including contributory negligence, so drafted as to expose the specific matters of fact upon which liability of any party is likely to depend;
4.1.4 a description (name, place of residence, place of business and occupation) of any person from whom the cross-defendant believes upon his or her then state of knowledge that the cross-defendant may be entitled to contribution or indemnity if the cross-claimant gains judgment against the cross-defendant; the cross-defendant must include this information even if he or she currently does not intend to join this person;
4.1.5 the identity of any insurer by whom the cross-defendant is or may be entitled to indemnity in respect of his or her alleged liability to the cross-claimant or the plaintiff;
4.1.6 where the cross-defendant is represented by a solicitor, a statement by the solicitor setting out the solicitor's opinion about:-
(a) whether it is likely that discovery of documents will be needed;
(b) whether it is likely that interrogatories will be needed and if so, why;
(c) whether it is likely that the cross-defendant will require expert evidence (other than medical evidence on quantum of damages) and, if so, in what area of expertise;
(d) any special feature of the plaintiff's claim or of the cross-claim or the cross-defendant's defence that might affect the complexity or length of the trial; and
(e) whether the exchange of witness statements or affidavits would be likely to assist the early resolution of the matter;
4.1.7 any information of the type referred to in Clause 1.1.5 of this Appendix that the cross-defendant knows;
4.1.8 where the plaintiff's claim is for damages for personal injury or in respect of the death of any person, a list of relevant photographs, films (other than x-ray films) or video tapes (excluding such as relates only to the issue of damages) in the possession of the cross-defendant, and a statement of the arrangements proposed by the cross-defendant for the viewing thereof by any other party.
Note: where the cross-defendant claims that there is a valid forensic reason why the existence or contents of any such photograph, film or video tape should not be disclosed prior to trial, the cross-defendant may, prior to the Status Conference, apply ex parte (without filing a notice of motion) to a registrar in chambers, upon an affidavit of the relevant circumstances, for an order that the same be not disclosed in the DCM document. The applicant for such an order shall produce to the registrar a draft order for signature, which order (if made) having been made, should be delivered to the applicant and not retained in the court file.
4.2 Where the plaintiff's claim is for damages for personal injuries:-
4.2.1 a copy of any claim form or written report of the injury or accident the cross-defendant or its insurer has received from the plaintiff or the cross-claimant;
4.2.2 where the cross-defendant or its insurer has interviewed the plaintiff or the cross-claimant, and one of the purposes of that interview was to prepare for potential or existing litigation, a copy of any statement made by the plaintiff or the cross-claimant in that interview relating to liability or contributory negligence in relation to the claim;
4.2.3 any documents referred to in Clauses 1.2.1 and 1.2.2 of this Appendix in the possession of the cross-defendant that have not already been served by any other party.
APPENDIX B
APPLICATION FOR STATUS CONFERENCE
The [specify party] applies for:-
tick relevant box a Status Conference pursuant to Clause22strike out all but the one relevant
- 33.4 of Practice Note 88
- 54.2(b) of Practice Note 88.
1 an urgent/early Status Conference pursuant to Clause 8.4 of Practice Note 88.
1 the re-opening of the Status Conference pursuant to Clause2 :-
- 38.4 (ADR)
- 38.5 (ADR)
- 41.2
- 41.3
- 43.4
- 61.4
of Practice Note 88.
Signature of Applicant/Applicant's solicitor
Address
Filed on
APPENDIX C - (Refer Clause 33.1)
ELECTION FOR STANDARD CASE MANAGEMENT TRACK
I elect to proceed on the Standard Case Management Track and consent to the standard directions being given.
Signature of plaintiff
I have explained to the plaintiff the difference between proceedings conducted on the Standard Case Management Track and proceedings conducted on the Individual Case Management Track.
In particular, I have brought to the attention of the plaintiff the fact that proceedings allocated to the Individual Case Management Track may in general be expected to obtain a hearing date earlier than proceedings allocated to the Standard Case Management Track.
Signature of plaintiff's solicitor
Filed
APPENDIX D
CERTIFICATE OF COMPLIANCE (Refer Part 13)
I [name] am the solicitor for the plaintiff.
I certify that each of the undermentioned directions has been complied with by the relevant party and that such compliance occurred upon the date inserted in the third column.
Set out below in column one, the number and terms of all directions given; in column two, the date directed for compliance and in column three, the date upon which the relevant party complied.
Number and terms Date directed for Date of compliance
of direction compliance
1 ...
2 ... (etc)
I further certify that the matter is, on the part of the plaintiff, in all respects ready for hearing.
I annex to this Certificate a Schedule identifying:-
all medical reports and other expert reports served by each party respectively;
where a direction has been given for the service of witness statements, all witness statements served by each party respectively;
where an order has been made for the filing and service of affidavits, a list of all affidavits filed by each party respectively and an indication as to which, if any, of the deponents has been required by any party to attend for cross-examination.
I am aware that if at the Final Conference it is found that any direction given by the court has not been complied with by any party or that the matter is otherwise, on the part of the plaintiff, not ready for trial, the matter may be transferred to the Not Ready List.
Signature of plaintiff's solicitor ______________________
