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Practice Note No. 59

REPEALED - Common Law Division


Date:
02/28/1990



                  PRACTICE NOTE NO 59
                  COMMON LAW DIVISION

    PART 1 - GENERAL

    1 This Practice Note applies to proceedings in the Common Law Division (other than proceedings in the Construction List and proceedings for defamation).

    2 The Practice Note dated 17 August 1987 (No 41) is rescinded and the Notice to Practitioners published on
    19 December 1988 ceases to have effect.

    PART 2 - SYDNEY

    1 This Part applies to proceedings where a notice to set down for trial naming Sydney as the place for trial has been filed pursuant to Part 33 rule 5.

    2 A call-over will be conducted by a Registrar for the purpose of ascertaining if proceedings should be determined by way of trial or by arbitration.

    3If at the call-over the Registrar determines that the proceedings should be referred for determination by an arbitrator, the Registrar will make an order under s 76B(1) of the Supreme Court Act 1970 and will, subject to paragraph 5, set the proceedings down for arbitration pursuant to Part 33 rule 8(3).
        If at the call-over the Registrar determines that the proceedings should be determined by trial or if the proceedings are to be dealt with after an order for re-hearing, the Registrar will, subject to paragraph 5, list the proceedings before a Registrar for an Issues and Listing Conference.

    4 Notice of the call-over in the form in Annexure A will be given to the parties about 4 months before the call-over is to be held. The order in which the notices are to be issued will be determined by the date on which the notice to set down for trial was filed in each of the Motor Vehicle, Jury and Non-Jury Lists.

    5 At the call-over proceedings will not be listed for a Conference or be referred to arbitration unless -

    (i) in proceedings in which Part 33 rule 8A is applicable, that rule has been complied with and amended or supplementary particulars, which provide all relevant information that is current at a date not more than 14 days before the call-over, have been filed and served; and
      (ii) copies of all experts' reports then available to which Part 36 rule 13A applies have been served and copies handed up in court together with a list of those reports which are not available, in the form in Annexure B.

      If the view is taken that a particular case has special or unusual features which warrant this course (such as, without limiting the generality of the foregoing, a need for technical or complex evidence which is unlikely to be substantially in dispute and the calling of which would occasion substantial delay or cost), directions will be given at the call-over for the filing of witness statements. referred to in Part 36 rule 4A, by the date of the Conference or the date fixed for the arbitration.

      If at the call-over proceedings are found to be not ready
      by reason of the default of the plaintiff, then -

      (i) on the first occasion, they will be stood over for a period of up to 2 months to another call-over; and

      (ii) on the second occasion, unless the circumstances are exceptional, the notice to set down will be liable to be struck out.

      If at the call-over any proceedings are found to be ready for a Conference or for arbitration then -

      (i) a date will be fixed for the Conference or arbitration so as to allow sufficient time for compliance with Part 36 rule 13A (service of experts' reports); and
      (ii) the proceedings will be set down for arbitration on a date approximately 2 months from the date of the call-over or be listed for a Conference on a date about 4 months from the call-over.

      9 At the Conference the personal attendance of the parties or of their principals who are authorised to give instructions which are unlimited in the context of the proceedings will be required. That requirement may be excused in relation to an insurer where it is not practicable for its representative to attend. Settlement negotiations should take place but if they fail, a comprehensive statement of the real matters in dispute must be signed by both parties and offers of compromise pursuant to Part 22 of the Rules should be made. Failure to comply with these requirements may result in an order that the proceedings be not set down for trial or an order that the defaulting party pay the other party's costs of and incidental to the Conference or both orders.

      10 If at the Conference any proceedings are found to be ready, they will be set down for trial and a hearing date not later than 6-8 weeks later will be allocated if possible.

      11 Proceedings fixed for hearing will be adjourned only in special circumstances, for example where matters were not foreseen at the time of listing and have occurred since the proceedings were fixed for hearing. All applications for adjournment will be listed before the List Judge and will require supporting affidavits. It should be anticipated that the parties will be personally required to attend the application. At the daily 9.30 am Common Law List call-over, the Registrar will call for any applications for adjournment for the purpose of referring them to the List Judge.

      PART 3 - OUTSIDE SYDNEY

      1 This Part applies to proceedings where a notice to set down for trial naming a place other than Sydney has been filed pursuant to Part 33 rule 5.

      2 To determine if proceedings should be set down for trial pursuant to Part 33 rule 8(1), a call-over or Issues and Listings Conference will be held 2 months before the sittings commence, as appropriate from year to year. Conferences will be held in the order of the date of filing the notice to set down for trial.

      3 Proceedings will not be set down for trial unless -

      (i) in proceedings to which Part 33 rule 8A is applicable, that rule has been complied with and amended or supplementary particulars, which provides all relevant information that is current at a date
            not more than 14 days before the call-over or Conference, have been filed and served; and

        (ii) copies of all experts' reports then available to which Part 36 rule 13A applies have been served and copies handed up in Court together with a list of those reports which are not available, in the form in Annexure B.

        4 If the view is taken that a particular case has special or unusual features which warrant this course (such as, without limiting the generality of the foregoing, a need for technical or complex evidence which is unlikely to be substantially in dispute and the calling of which would occasion substantial delay or cost), directions will be given at the call-over or Conference for the filing of witness statements, referred to in Part 36 rule 4A, within 21 days before the commencement of the sittings.

        5 Proceedings found to be not ready at the call-over or Conference by reason of the default of the plaintiff will be stood over for an indefinite period and will be accorded the same priority for the purpose of obtaining afresh call-over or Conference date as if a notice to set down for trial had been filed on that day.
                                    Chief Justice

          28 February 1990

                            ANNEXURE A
                        NOTICE OF CALL-OVER

          ...........
          - v -
          ...........
          NO OF 19

          DATE OF CALL-OVER:

          A notice to set down for hearing has been filed in these proceedings pursuant to Part 33 rule 5. A hearing date will be fixed at an Issues and Listings Conference.

          So that the Court may consider whether the proceedings are ready for trial (Part 33 rule 8), the proceedings have been listed for call-over on the abovementioned date. If it is found that the proceedings are ready for trial they may be referred to arbitration, if appropriate or a date and time will be fixed for an Issues and Listings Conference. The date of that Conference will be the relevant date for the purpose of Part 36 rule 13A(3)(a).

          At the call-over a date will not be fixed for a Conference nor will the matter be referred to arbitration unless -

          (a) all reports from medical and other experts other than reports arising from refresher examinations or consultations have been served. Copies of such reports annexed to a schedule in the form of the attached documents must be handed up at the Conference;

          (b) a list of outstanding refresher examinations and consultations and the dates thereof is tendered;

          (C) up-to-date particulars pursuant to Part 33 rule 8A, or a statement that there is to be no amendment or supplementation to or of the particulars already filed, is filed in court; and

          (d) all amendments to pleadings have been made.

          If the proceedings are referred to arbitration, a date and time for an arbitration hearing will be fixed about 2 months after the call-over. If proceedings are referred to an Issues and Listings Conference they will be fixed, if possible, about 2 months after the call-over and, if the proceedings do not settle at that Conference, a hearing date will be fixed no more than 8 weeks after the Conference.

          If it is found at the call-over that the proceedings are not ready for trial they will be returned to the List to await a further call-over date. If a matter is not ready for trial on the second occasion it is included in a call-over, and that is due to the plaintiff's default, the notice to set down is liable to be struck out.
                            ANNEXURE B

          ...........
          - v -
          ...........
          NO OF 19

          All experts' reports to be relied upon have been served other than reports arising from refresher examinations or consultations where the primary medical is less than 12 months old.

          I understand that all other reports are to be served 21 days before the Issues and Listing Conference or arbitration. Below is a schedule of the experts' reports and

          the dates of service.
          Medical
          Name of Doctor Date of report Date of service
          ………………………………… ……………………………………… ………………………………………




          Non-Medical
          Name of Expert Expertise Date of service
          …………………………………… ………………………… ………………………………………







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