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Supreme Court Common Law Division – General Case Management List
PRACTICE NOTE SC CL 5
Supreme Court Common Law Division – General Case Management List
1. This Practice Note commences 29 January 2007.
2. This Practice Note applies to proceedings mentioned in paragraph 5 of this Practice Note which are in, or to be entered in, the General Case Management List.
3. In this Practice Note:
Concurrent expert evidence means two or more expert witnesses giving evidence at the one time.
CPA means the Civil Procedure Act 2005
Evidentiary statement means a statement by the plaintiff which will form the basis of his or her evidence in chief or where the plaintiff is a corporation or is unable as a result of age or disability to give evidence a statement by an appropriate officer of the corporation or by that person through whom it is intended to provide the factual basis for the plaintiff’s case in chief.
GCM means General Case Management
GCM document means the document in Appendix A of this Practice Note.
List means the General Case Management List
Single expert witness means an expert witness jointly retained by the parties or appointed by the Court in accordance with UCPR Part 31 r 31.37(2).
UCPR means Uniform Civil Procedure Rules 2005 (as amended)
4. The purpose of this Practice Note is to explain the operation of the General Case Management List.
Proceedings covered by GCM
5. GCM applies to the following proceedings in the Common Law Division:
7. The court may, at any time after the commencement of proceedings, direct that GCM apply to those proceedings.
Removal from the list
8. Upon proceedings being removed from the List, this Practice Note shall, subject to paragraph 9 not apply to the proceedings from the making of the order.
9. The Court may direct that this Practice Note shall continue to apply to the proceedings to the extent stated in the direction.
10. The making of an order removing proceedings from the List shall not affect any orders made or directions given prior to such removal.
The GCM document
11. In relation to any party, the GCM document refers to the document which, by virtue of this Practice Note, may be required to be filed by that party. The form and content of the GCM document are explained in Appendix A.
12. A plaintiff must file the GCM document at the same time as filing the originating process unless the proceedings are only for a liquidated demand or only for a liquidated demand and interest under Section 97 of the Civil Procedure Act (“default proceedings”).
13. Where a defence or cross claim is filed in default proceedings the plaintiff must file the GCM document within one month after being served with an appointment for Directions Hearing and a defence and/or cross claim.
14. Each other party must file the GCM document not later than one month before the date of the Directions Hearing.
15. Proceedings in the List will generally be managed by way of Directions Hearings conducted by a Judge or Registrar.
16. The first Directions Hearing will be appointed for approximately 3 months after proceedings are entered in the List. The date of the first Directions Hearing will be given by the registry in a notice issued at the time of filing the statement of claim to be served by the filing party.
17. Upon a defence or a statement of cross claim being filed in default proceedings, the registry will give notice to all parties with an address for service in the proceedings of the date of the first Directions Hearing.
18. Where proceedings are transferred to the Common Law Division from another division of the Court or from another court, the Court appoints a date for the Directions Hearing upon receipt of the transferred file. The registry will advise parties with an address for service of the date.
19. At a Directions Hearing, proceedings may be listed at a specified future date for a further Directions Hearing.
20. Directions Hearings, other than the first Directions Hearing for cases to be heard in Sydney, may be conducted by online court or by telephone.
21. Parties who wish to use online court shall do so in accordance with Practice Note SC Gen 12.
22. Parties wishing to avail themselves of telephone facilities must advise the Sydney Registry in writing at least 7 days prior to the date scheduled for the Directions Hearing. This written advice is to be marked to the attention of “The Common Law List Clerk” and must indicate the telephone number that the party or the relevant legal representative wants to be called at for the Directions Hearing. This advice can be forwarded by facsimile transmission to (02) 9230 8234 or by email to firstname.lastname@example.org. Directions Hearings involving parties to be contacted by telephone may have to be re-scheduled to a different time. The registry will contact those parties seeking a telephone Directions Hearing, and the other parties if the Directions Hearing has to be re-scheduled, to confirm the date and time of the Directions Hearing. Parties seeking a telephone Directions Hearing must ensure that the telephone number nominated is available from 10 minutes before the confirmed time of the Directions Hearing. A telephone Directions Hearing may not be available if the case involves multiple defendants that are separately represented and it is thought impractical to use the facility.
Action prior to first directions hearing
23. The originating process and pleadings should be as brief and precise as the nature of the case allows.
24. It is expected that the parties’ legal representatives will have discussed the case before the first Directions Hearing and will have:
25. Each party not appearing in person must be represented at the Directions Hearing by a barrister or a solicitor familiar with the subject matter of the proceedings and with instructions sufficient to enable all appropriate orders and directions to be made.
Actions at a directions hearing
26. The purpose of a Directions Hearing is to ensure the just, quick and cheap disposition of proceedings in accordance with the overriding purpose set out in section 56 of the CPA. Each party is obliged to notify the Court and the other parties if they are aware of any substantial default that cannot be cured by the making of consent variations to directions or timetables.
27. The tasks at a Directions Hearing include, but are not limited to:
28. At the first Directions Hearing a plaintiff is to provide to each party an evidentiary statement. A plaintiff is not precluded from supplementing the evidentiary statement with oral evidence. If it is intended to raise by oral evidence issues not covered by the evidentiary statement an amended evidentiary statement is to be served on each party as soon as practicable after the need to amend the evidentiary statement arises.
29. Each defendant is to serve on the plaintiff within 28 days of the receipt of the evidentiary statement a statement of issues in dispute. The statement of issues in dispute is to concisely set out those facts which the defendant intends to establish in respect of each issue in dispute.
30. Each defendant is to notify the plaintiff within 28 days of the receipt of the evidentiary statement of those parts of the evidentiary statement which the defendant requires to be given orally.
31. A plaintiff is to serve on each party within 14 days of the receipt of the statement of issues in dispute a statement identifying those issues which are agreed and not agreed.
Expert witnesses in personal injury actions
32. The Court is concerned about the number of experts often expected to give evidence in personal injury cases. The practice of having a large number of experts qualified, both medical and otherwise, whose opinions may be overlapping and whose reports either are not used or are of little assistance to the Court when tendered, is costly, time consuming and productive of delay. The attention of practitioners in cases in which a claim is made for personal injury or disability is drawn to Practice Note PN SC Gen 10 which deals with “Single Expert Witnesses”.
33. Where it is considered that an unnecessary expert has been qualified or is sought to be called to give evidence, the Court may:
34. As a guide, the number of expert witnesses giving evidence on behalf of a party shall be limited to:
(a) one medical expert in any speciality, unless there is a substantial issue as to ongoing disability, in which case the number shall be limited to two in any relevant speciality concerning that disability; and
(b) two experts of any other kind.
35. Actuarial reports will as a rule be considered unnecessary except in special circumstances where they are shown to be of assistance in the assessment of damages, for example in proceedings under the Compensation to Relatives Act 1897 or where a claim is made for the costs of future fund management.
Concurrent expert evidence
36. This part of the Practice Note applies to all proceedings in which a claim is made for damages for personal injury or disability.
37. All expert evidence will be given concurrently unless there is a single expert appointed or the Court grants leave for expert evidence to be given in an alternate manner.
38. At the first Directions Hearing the parties are to produce a schedule of the issues in respect of which expert evidence may be adduced and identify whether those issues potentially should be dealt with by a single expert witness appointed by the parties or by expert witnesses retained by each party who will give evidence concurrently.
39. In the case of concurrent experts, within 14 days of all expert witness statements/reports being filed and served, the parties are to agree on questions to be asked of the expert witnesses. If the parties cannot reach agreement within 14 days, they are to arrange for the proceedings to be re-listed before the Court for directions as to the questions to be answered by the expert witnesses.
40. In the case of concurrent experts the experts in each area of expertise are to confer and produce a report on matters agreed and matters not agreed within 35 days of the first Directions Hearing or such other time as the Court may order.
Single expert witness
41. This part of the Practice Note applies to all proceedings in which a claim is made for damages for personal injury or disability.
42. At the first Directions Hearing, a single expert direction will be made in respect of those issues considered to be appropriate for a single expert. In all proceedings in which a claim is made for damages for personal injury, a single expert direction as to damages will be taken to have been made at the first Directions Hearing unless otherwise ordered.
43. A single expert direction, when made in those terms, means that the following directions are to be taken as having been made, with such variations as may be specified at that time or subsequently:
Alternative Dispute Resolution
44. At any Directions Hearing, the Court may consider whether the proceedings are suitable for ADR.
45. ADR includes:-
46. If the matter appears to the Court to be appropriate for resolution by mediation or arbitration, the Court will refer the proceedings for mediation or arbitration.
47. The Court may give directions requiring statements from parties including a timetable to enable parties to be prepared for mediation.
48. Where proceedings involve a claim for damages in respect of personal injuries or in respect of the death of any person, the Court may, at a Directions Hearing, refer the proceedings for arbitration by a single arbitrator.
49. Where the court refers proceedings for arbitration, the court may give directions for the conduct of the arbitration.
Variation of directions and timetable
50. Case management directions given at a Directions Hearing 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 day specified by the Court for compliance with the last direction made; or
(b) by the Court.
51. Where a party seeks a variation of the directions and timetable which is not consented to by all other parties or, where a party is in default in timely compliance with any direction, any party may apply to have a further Directions Hearing listed.
Listing for hearing
52. When ready for trial, for proceedings in which a claim is made for damages for personal injury or disability, standard directions in the form of Appendix B are deemed to have been made, unless the Court otherwise orders.
53. Each party files the GCM document in order to provide the Court with information which will ensure that the Directions Hearings are efficient and effective.
54. A GCM 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.
55. In addition to the matters specifically required by this Practice Note to be included in the GCM 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 Directions Hearings.
56. If a report or other document which is annexed to a party’s GCM document has already been served on another party, a further copy of that report or document need not be annexed to the copy of the GCM document which is to be served on that party. That copy of the GCM document must however include a schedule listing the reports and documents which have been served and the date of service.
Plaintiff’s GCM document
P1.1 The plaintiff’s GCM document is to contain:-
P1.1.1 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, but not law, upon which liability is likely to depend;
P1.1.2 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 clearly identifying the previous proceedings.
P.1.1.3 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 GCM document is filed. The statement must clearly identify the other proceedings even if they are not related to the event out of which the present proceedings arise; and
(b) full particulars of any accident or injury the plaintiff has suffered which is not the subject of a claim in the proceedings in which the GCM document is to be filed and which may be relevant to the assessment of damages;
Defendant’s GCM document
D2.1 The defendant’s GCM document is to contain:-
D2.2 Where the plaintiff’s claim against the defendant is for damages for personal injuries, the defendant is to annex to the GCM document:-
D2.2.2 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;
D2.2.3 any documents referred to in P1.2.1 in the possession of the defendant that have not already been served by any other party;
D2.2.4 a list only 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
Cross-Claimant’s GCM document
XC3.1 A cross-claimant’s GCM document is to contain:-
XC3.1.3 any information of the type referred to in P1.2.1 that the cross-claimant knows;
Cross-Defendant’s GCM document
XD4.1 A cross-defendant’s GCM document is to contain:-
XD4.2 Where the plaintiff’s claim is for damages for personal injuries:-
XD4.2.2 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;
XD4.2.3 any documents referred to in P1.2.1 and P1.2.2 of this Appendix in the possession of the cross-defendant that have not already been served by any other party.
57. Within 7 days of a hearing date having been allocated:
(ii) Each party is to prepare a draft schedule of damages, outlining in detail the heads of damages, and identifying the evidence which supports that head of damage.
(iii) Each party is to prepare its final schedule of issues in dispute.
J J Spigelman AC
Chief Justice of New South Wales
5 December 2006
This Practice Note replaces Practice Note SC CL 5 issued on 17 August 2005.
Practice Note SC CL 5 replaced former Practice Note No. 128 on 17 August 2005.
Practice Note SC Gen 1 Supreme Court – Application of Practice Notes
Practice Note SC Gen 6 Supreme Court - Mediation
Practice Note SC Gen 10 Supreme Court – Single Expert Witnesses
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005 (as amended)