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Practice Note No. SC Eq 3

Supreme Court Equity Division - Commercial List and Technology and Construction List


Date:
12/10/2008






    PRACTICE NOTE SC Eq 3


    Supreme Court Equity Division - Commercial List and Technology and Construction List

        Commencement
        1. This Practice Note was issued on 10 December 2008 and commenced on 1 January 2009.

        Application
        2. This Practice Note applies to new and existing proceedings in, or to be entered in, the Commercial List or the Technology and Construction List in the Equity Division.

        Definitions
        3. In this Practice Note:
        Court Book means the documents that a party intends to rely upon at the trial or hearing of an application
        CPA means the Civil Procedure Act 2005
        UCPR means the Uniform Civil Procedure Rules 2005
        SCR means the Supreme Court Rules 1970
        Lists mean the Commercial List or the Technology and Construction List
        List Judge means a judge of the Equity Division assigned to administer the Lists and
        Document has the same meaning as in the Evidence Act 1995 (NSW).

        Introduction
        4. The purpose of this Practice Note is to set out the case management procedures employed in the Lists for the just, quick and cheap disposal of proceedings.

        5. Practice Note SC Eq 1 shall not apply to proceedings in the Lists.

        6. It is expected that this Practice Note will be observed for the conduct of proceedings entered in either of the Lists.

        7. A party who considers that compliance with this Practice Note will not be possible, or will not be conducive to the just, quick and cheap disposal of the proceedings, may apply to be relieved from compliance on the basis that an alternative proposed regime will be more conducive to such disposal.

        Pleadings and Entry in the Lists
        8. A matter in the Lists shall be commenced in the general form of Summons prescribed under the UCPR. There is to be filed with the Summons a List Statement, for the Commercial List a “Commercial List Statement” and for the Technology and Construction List a “Technology and Construction List Statement”, setting out, in summary form, in the form of Annexure 1:
            8.1 the nature of the dispute
            8.2 the issues which the plaintiff believes are likely to arise
            8.3 the plaintiff's contentions
            8.4 the questions (if any) the plaintiff considers are appropriate to be referred to a referee for inquiry and report and
            8.5 a statement as to whether the parties have attempted to mediate and whether the plaintiff is willing to proceed to mediation at an appropriate time.

        9. The plaintiff's contentions should:
            9.1 avoid formality
            9.2 state the allegations the plaintiff makes with adequate particulars and
            9.3 identify the legal grounds for the relief claimed.

        10. A defendant shall file and serve a List Response, in the Commercial List a “Commercial List Response” or in the Technology and Construction List a “Technology and Construction List Response”, setting out, in summary form in the form of Annexure 1:
            10.1 the nature of the dispute
            10.2 the issues which the defendant believes are likely to arise
            10.3 the defendant's response to the plaintiff’s contentions including the legal grounds for opposition to the relief claimed in the Summons
            10.4 the questions (if any) the defendant considers are appropriate to be referred to a referee for inquiry and report and
            10.5 a statement as to whether the parties have attempted to mediate and whether the defendant is willing to proceed to mediation at an appropriate time.

        11. The defendant's contentions should:
            11.1 avoid formality
            11.2 admit or deny the allegations the plaintiff makes
            11.3 in so far as they do not already appear state the allegations the defendant makes including adequate particulars of those allegations and
            11.4 identify the legal grounds for opposition to the relief claimed in the Summons.
        12. Any Cross-Claim shall be made in the general form of Cross-Summons prescribed under the UCPR. There is to be filed and served with any Cross-Summons a List Cross-Claim Statement, in the Commercial List a “Commercial List Cross-Claim Statement” or, in the Technology and Construction List a “Technology and Construction List Cross-Claim Statement” setting out the matters listed in paragraphs 8 and 9 above in the form of Annexure 1.

        13. A Cross-Defendant shall file and serve a List Cross-Claim Response, in the Commercial List a “Commercial List Cross-Claim Response” or, in the Technology and Construction List, a “Technology and Construction List Cross-Claim Response” setting out the matters listed in paragraphs 10 and 11 above in the form of Annexure 1.

        14. At the time of service of any Cross-Summons the Cross-Claimant is to serve on the Cross-Defendant copies of the Summons and any other Cross-Summons together with any relevant List Statement and List Response and any List Cross-Claim Statement and List Cross-Claim Response that have been served on or by the Cross-Claimant.

        15. Any party moving for an order for entry of any proceedings in either of the Lists shall move by Notice of Motion at the earliest possible time and shall file and serve with the Notice of Motion a relevant List Statement or List Response.

        16. Any motion for an order for entry of proceedings in either of the Lists shall be made returnable before the List Judge on a Friday.

        17. For ease of reference all List Statements and Responses (including in relation to Cross-Claims) must include a Front Sheet identifying the names of the parties and their designation as plaintiff or defendant or Cross-Claimant or Cross-Defendant. This paragraph does not apply to a Summons or Cross-Summons.

        Removal from the Lists
        18. Upon an order being made removing proceedings from either of the Lists and subject to paragraph 19, this Practice Note shall not apply to the proceedings from the making of that order.

        19. The Court may direct that this Practice Note shall continue to apply to the proceedings to the extent stated in the direction.

        20. The making of an order removing proceedings from either of the Lists shall not affect any orders made or directions given prior to such removal.

        Motions and Directions
        21. All proceedings in the Lists are case managed by the List Judge with the aim of ensuring a speedy resolution of the real issues between the parties. The Lists are administered in Court on Friday of each week. Motions are listed at 9.15 am and are called through for the purpose of ascertaining the length of the hearing and allocating a time for hearing on that or some other day. Directions in the Commercial List commence at 9.45am and directions in the Technology and Construction List commence at 12 noon. The times for the commencement of the Motions and Directions hearings may change and Practitioners should always check the daily court lists as published prior to attendance at Court on a Friday.

        22. The Court’s expectation of Practitioners appearing in the Lists includes that:
            22.1 careful review of the case will be made as early as practicable for the purpose of informing the Court of its suitability for mediation, for reference out of all or some of the issues, and/or for the use of a single expert, or a Court Appointed Expert or the use of an appropriate concurrent evidence process
            22.2 at the time the matter is set down for hearing trial counsel will provide to the Court: (1) a considered opinion of the realistic estimate of the time required for trial; and (2) the allocation of time for their client’s evidence and submissions in the stopwatch system for trial
            22.3 agreement will be reached on a timetable for the preparation of matters for trial and/or reference and/or mediation and Consent Orders will be handed up during the directions hearing
            22.4 if there is slippage in an agreed timetable, further agreement will be reached without the need for the intervention of the Court and
            22.5 requests for Court intervention in relation to timetabling will only be sought rarely when, for good reason, agreement has proved to be impossible.

        23. To facilitate the just, quick and cheap resolution of matters Consent Orders will be made by the List Judge in Chambers on days other than Friday by application in writing to the List Judge’s Associate. When Consent Orders are to be made either in Chambers or in Court varying a timetable, it is imperative that those Orders include the vacation of any date for directions hearings or the hearing of Motions that the parties no longer wish to maintain. If the proceedings settle, it is necessary to have the List Judge make Orders finalising the litigation, rather than filing Terms or Orders with the Registry. Those Orders may also be made by consent in Chambers.

        24. The Lists close at 12 noon on Thursday. Any application to add a matter to the List or remove a matter from the List must be made prior to 12 noon on Thursday. Such applications are to be made in writing to the List Judge’s Associate.

        25. At the first and/or subsequent directions hearings orders will be made and directions given with a view to the just, quick and cheap disposal of the proceedings. The orders or directions may relate to:
            25.1 the filing of a Summons, List Statements, List Responses or other documents
            25.2 the filing of a Cross-Summons, List Cross-Claim Statements or Responses
            25.3 the filing of a statement of agreed issues and the result in the proceedings according to the determination of those issues
            25.4 the provision of any essential further particulars that are not contained in the List Statements or Responses
            25.5 the making of admissions, pursuant to a notice to admit facts or otherwise
            25.6 the appointment of a single expert or a Court Appointed Expert
            25.7 the holding of conferences of experts including with a view to providing joint reports and/or agendas for use in the concurrent evidence method at trial
            25.8 the filing of lists of documents either generally or with respect to specific matters
            25.9 the preparation of a Scott Schedule
            25.10 the provision of copies of documents
            25.11 the administration and answering of interrogatories either generally or with respect to specific matters
            25.12 the service and/or filing of affidavits or statements of evidence by a specified date or dates
            25.13 the reference to a referee for inquiry and report of the whole of the proceedings or any question arising therein and
            25.14 the obtaining of the assistance of any person specially qualified to advise on any matter arising in the proceedings.

        26. Orders or directions relating to the provision of particulars, the filing of lists of documents and the administration of interrogatories will be made only upon proof of necessity.

        Discovery
        27. The Court endorses a flexible rather than prescriptive approach to discovery to facilitate the making of orders to best suit each case.

        28. Subject to an order of the Court or unless otherwise agreed between the parties, discovery of electronically stored documents and information is to be made electronically. Discoverable documents and information that are not stored electronically should only be discovered electronically if it is more cost effective to do so.

        29. Practitioners must advise their opponents at an early stage of the proceedings of potentially discoverable electronically stored information and meet to agree upon matters including:
            29.1 the format of the electronic database for the electronic discovery
            29.2 the protocol to be used for the electronic discovery including electronically stored information
            29.3 the type and extent of the electronically stored information that is to be discovered and
            29.4 whether electronically stored information is to be discovered on an agreed without prejudice basis
            29.4.1 without the need to go through the information in detail to categorise it into privileged and non-privileged information and
            29.4.2 without prejudice to an entitlement to subsequently claim privilege over any information that has been discovered and is claimed to be privileged under s 118 and/or s119 of the Evidence Act 1995 and/or at common law.
        30. At any hearing relating to discovery (including its form and extent), the Court expects practitioners to have:
            30.1 ascertained the probable extent of discoverable documents
            30.2 conferred with their opponents about any issues concerning the preservation and production of discoverable documents including electronically stored information
            30.3 given notice to their opponents of any problems reasonably expected to arise in connection with the discovery of electronically stored information, including difficulty in the recovery of deleted or lost data
            30.4 given consideration to and conferred in relation to the particular issues involved in the collection, retention and protection of electronically stored information, including:
                30.4.1 whether the burden and cost involved in discovering a particular document or class of documents is justified having regard to the cost of accessing the document or class of documents and the importance or likely importance of the document or class of documents to the proceedings
                30.4.2 whether particular software or other supporting resources may be required to access electronically stored information
                30.4.3 the manner in which documents are to be electronically formatted so that the integrity of the documents is protected
                30.4.4 whether particular documents need to be discovered in hard copy form (such as original documents or documents larger than A3 in size)
                30.4.5 how privileged documents should be appropriately protected
            30.5 given consideration to preparing and, if agreed, prepared a Joint Memorandum signed by the senior practitioners who attended the discovery meeting (and who are to attend the discovery hearing) identifying:
                30.5.1 areas of agreement on proposed discovery
                30.5.2 areas of disagreement with a brief statement of the reasons therefore and
                30.5.3 respective best estimates of the cost of discovery.
        31. The Court will make orders for discovery having regard to the overriding purpose of the just, quick and cheap resolution of the disputes between the parties.

        32. For the purposes of ensuring that the most cost efficient method of discovery is adopted by the parties, on the application of any party or of its own motion, the Court may limit the amount of costs of discovery that are able to be recovered by any party.

        Evidence
        33. With the exception of evidence in support of interlocutory applications, the former practice of filing evidence as case preparation occurs is to cease. Timetables for case preparation should include provision for the serving of evidence on the other parties but not filing it with the Court. Evidence to be relied upon at trial will only be filed with the Court at the time provided for in the Usual Order for Hearing.

        34. Evidence to be relied upon in support of interlocutory applications is to be served on the other parties and filed with the Court. Timetables for preparation of such applications should include provision for that process.

        35. The former practice of annexing or exhibiting documents to affidavits or statements will only be permitted in interlocutory applications and otherwise with the leave of the Court or pursuant to agreement between the parties.

        36. In the preparation of evidence to be relied upon at trial any documents referred to in any statement or affidavit are to be placed into the proposed Court Book in chronological order.

        37. Subject to an order of the Court or unless otherwise agreed between the parties, the Proposed Court Book is to be established in electronic form.

        38. Prior to the preparation of a timetable for the serving of evidence the parties are to agree on the manner in which the electronic form of Court Book (the Electronic Court Book) is to be established including, where it is to be established; which party/parties (or third party) will manage it and its format. Such agreement should be recorded in the Short Minutes of Order for the preparation of the evidence in the proceedings.

        39. The Electronic Court Book is to be produced at trial. A hard copy of only those parts of the Electronic Court Book that will be essential for the Court to consider in determining the dispute between the parties is also to be produced at trial.

        Orders for reference
        40. Consideration should be given throughout the course of proceedings as to whether any questions are appropriate for referral to a referee for inquiry and report.

        41. Where questions are appropriate to be referred to a referee for inquiry and report, the parties should:
            41.1 formulate the questions with precision and
            41.2 inform the Court of:
                41.2.1 the identity of an agreed referee or, if no agreement can be reached, the referee each suggests
                41.2.2 the date on which the referee can commence the reference
                41.2.3 the expected duration of the reference and
                41.2.4 the anticipated date for delivery of the report.
        42. An order made for reference to a referee for inquiry and report will normally be in the form of the Usual Order for Reference set out in Annexure 2.

        43. Consent Orders for amendment to the matters referred to the Referee in the Schedule to the Usual Order for Reference may be filed with the List Judge’s Associate in writing for the making of such order in Chambers. Any contested amendments are to be heard in the Motions List on Fridays.

        Representation
        44. Each party not appearing in person shall be represented at any 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.

        45. Practitioners should have communicated prior to the directions hearing with a view to agreement on directions to propose to the Court and preparation of short minutes recording the directions.

        Urgent applications and liberty to apply
        46. A party seeking ex parte or urgent orders or directions prior to the commencement of proceedings or in the course of the proceedings should telephone the Commercial List Judge’s Associate, who will advise the party of the Judge to whom application should be made.

        47. Parties have general liberty to apply and may cause proceedings to be listed at a directions hearing prior to a specified future directions hearing. A party seeking to do so should make prior arrangement with, or give appropriate notice to, any other party, and should send a fax to the List Judge’s Associate who will advise the date for listing.

        Listing for hearing
        48. Where the whole, or any part, of the proceedings is/are to be heard by the Court, a date for hearing may be fixed prior to completion of interlocutory steps.

        49. Proceedings will be fixed for hearing during a directions hearing in the Lists on Friday at which time the Court should be provided with a realistic estimate of the hearing time required and where there is to be an application for a stopwatch hearing, paragraphs 50 to 53 are applicable. Upon fixing a date for hearing the Court will normally direct that the Usual Order for Hearing set out in Annexure 3 shall apply, with or without modification.

        Stopwatch Hearings
        50. An option for matters that are heard by the Court and/or referred to Referees is the stopwatch method of trial or reference hearing. In advance of the trial or reference, the Court will make orders in respect of the estimated length of the trial or reference and the amount of time each party is permitted to utilise. The orders will allocate blocks of time to the aspects of the respective cases for examination in chief, cross-examination, re-examination and submissions. If it is in the interests of justice, the allocation of time will be adjusted by the Court or the Referee to accommodate developments in the trial or reference.

        51. This method of hearing is aimed at achieving a more cost effective resolution of the real issues between the parties. It will require more intensive planning by counsel and solicitors prior to trial including conferring with opposing solicitors and counsel to ascertain estimates of time for cross-examination of witnesses and submissions to be built in to the estimate for hearing.

        52. Any party wishing to have a stopwatch hearing must notify the other party/parties in writing prior to the matter being set down for hearing or reference out. At the time the matter is set down for hearing or referred out to a Referee it is expected that solicitors or counsel briefed on hearing will be able to advise the Court:
            52.1 whether there is consent to a stopwatch hearing and
            52.2 if there is no consent , the reasons why there should not be a stopwatch hearing.
        53. If there is consent to a stopwatch hearing counsel and/or solicitors must be in a position to advise the Court of:
            53.1 the joint estimate of the time for the hearing of the matter and
            53.2 the way in which the time is to be allocated to each party and for what aspect of the case.
        Experts
        54. The use of a single expert or a Court Appointed Expert and/or the concurrent evidence of experts is encouraged in suitable cases. The parties are to confer as early as practicable with a view to reaching agreement as to whether the use of such an expert or the concurrent evidence of experts is appropriate and, if agreed, the inclusion of such appointment and/or adoption of concurrent evidence should be accommodated in the timetable for the preparation for hearing.

        55. Where experts' reports have been or are to be served (whether or not pursuant to an order or direction of the Court) the Court will, unless otherwise persuaded, direct, upon such terms as it thinks fit, that the parties cause the experts or some of them to confer with a view to identification of and a proper understanding of any points of difference between them and the reasons therefore and a narrowing of such points of difference. The Court may, at the same time or subsequently, direct that the parties and/or the experts prepare an agreed statement of the points of agreement, and of difference remaining, between experts following such conference and the reasons therefore (see Schedule 7 of the UCPR).

        Proportionate Liability
        56. Any party in proceedings involving an apportionable claim, who has reasonable grounds to believe that a particular person may be a concurrent wrongdoer in relation to the claim(s) must, as soon as practicable, give written notice to all other parties to the proceedings of:
            56.1 the identity of that person and
            56.2 the alleged circumstances that may make that person a concurrent wrongdoer.
        Costs
        57. Unless otherwise ordered, a party in whose favour an order for costs is made may proceed to assessment of such costs forthwith.

        58. The cost of unnecessary photocopying and assembly of documents is unacceptable. It is incumbent on the lawyers for the parties to carefully consider the documents necessary to be included in the tender bundle. Excessive documents may attract adverse costs orders.

        Mediation
        59. The parties should be aware of the provisions of Part 4 of the CPA and relevant parts of the UCPR relating to mediation.

        60. It is expected that prior to the commencement of proceedings in the Lists, the parties will have considered referral of their disputes to mediation. It is also expected that the lawyers, or the litigant if not legally represented, will be in a position to advise the Court on the first return date of the Summons whether:
            60.1 the parties have attempted mediation and
            60.2 their respective clients are willing to proceed to mediation at an appropriate time.
        61. If a matter is referred to mediation by consent and/or by an order pursuant to the section 26 of the CPA, the parties are to ensure that the person(s) who is (are) able to make a decision as to whether the matter settles is present personally or by authorised nominee(s) at the mediation.

        Summary judgment
        62. As a general rule applications to strike out or for summary judgment will not be entertained. Sometimes applications are appropriate, but Practitioners should expect strictness in declining to entertain such applications.

        Use of technology
        63. The use is encouraged, where appropriate, of technology permitting the taking of evidence in, or other conduct of, proceedings by video link or conference telephone and the management of documents and transcript. Practitioners should propose the use of such technology when appropriate, and the Court may give directions involving its use: for example, in major cases with a view to statements, documents and transcript being available to all concerned on a common data base.


        J J Spigelman AC
        Chief Justice of New South Wales
        10 December 2008
        Related Information

        See also:

        Supreme Court Practice Note SC Gen 1 – Application of Practice Notes

        Supreme Court Practice Note SC Gen 6 - Mediation

        Supreme Court Practice Note SC Gen 7 – Use of technology

        Supreme Court Practice Note SC Gen 10 – Single expert witness

        Supreme Court Practice Note SC Gen 11 – Joint conferences of expert witnesses

        Civil Procedure Act 2005

        Uniform Civil Procedure Rules 2005

        Supreme Court Rules 1970

        Amendment History

        This Practice Note replaces Practice Note SC Eq 3 issued on 20 July 2007.

        Practice Note SC Eq 3 issued on 20 July 2007 replaced the Note issued 1 September 2006. Practice Note SC Eq 3 issued on 1 September 2006 replaced the Note issued on 17 August 2005.

        Practice Note SC Eq 3 issued on 17 August 2005 replaced Former Practice Note No. 100.



        ANNEXURE 1

        [LIST] STATEMENT [OR] LIST CROSS CLAIM STATEMENT

        [LIST] RESPONSE [OR] LIST CROSS CLAIM RESPONSE

        A. NATURE OF DISPUTE

        B. ISSUES LIKELY TO ARISE

        C. PLAINTIFF'S [or CROSS CLAIMANT’S] CONTENTIONS
        [or C DEFENDANT’S [or CROSS DEFENDANT’S] RESPONSES TO CONTENTIONS which should include reference to any relief claimed in the Summons or Cross Summons that are admitted, not admitted or denied.

        D. QUESTIONS APPROPRIATE FOR REFERRAL TO A REFEREE

        E. A STATEMENT AS TO WHETHER THE PARTIES HAVE ATTEMPTED MEDIATION; WHETHER THE PARTY IS WILLING TO PROCEED TO MEDIATION AT AN APPROPRIATE TIME.

        ANNEXURE 2

        USUAL ORDER FOR REFERENCE

        1 Pursuant to Part 20 rule 14 of the Uniform Civil Procedure Rules (the “UCPR”), refer to [state name of referee] for enquiry and report the matter in the Schedule hereto.

        2 Direct that (without affecting the powers of the Court as to costs) the parties, namely [state relevant parties], be jointly and severally liable to the referee for the fees payable to him.

        3 Direct that the parties deliver to the referee forthwith a copy of this order together with a copy of Division 3 of Part 20 of the UCPR.

        4 Direct that:
            4.1 subject to paras 4.2 and 4.3 hereof, the provisions of Pt 20 r 20 shall apply to the conduct of proceedings under the reference
            4.2 the reference will commence on [date] unless otherwise ordered by the referee
            4.3 the referee consider and implement such manner of conducting proceedings under the reference as will, without undue formality or delay, enable a just determination to be made including, if the referee thinks fit:
                4.3.1 the making of inquiries by telephone
                4.3.2 site inspection
                4.3.3 inspection of plant and equipment and
                4.3.4 communication with experts retained on behalf of the party
            4.4 any evidence in chief before the referee shall, unless the referee otherwise permits, be by way of written statements signed by the maker of the statement
            4.5 the referee submit the report to the Court in accordance with Pt 20 r 23 addressed to the Equity Division Registrar on or before [date].

        5 Amendments to the Schedule, whether by agreement or on a contested basis, are to be the subject of an order made by the Court.

        6 If for any reason the Referee is unable to comply with the Order for delivery of the report to the Court by the date in this Usual Order for Reference, the Referee is to provide to the List Judge an Interim Report setting out the reasons for such inability and an application to extend the time within which to deliver the report to the Court to a date when the Referee will be able to provide the Report.

        7 Grant liberty to the referee or any party to seek directions with respect to any matter arising in proceedings under the reference upon application made on 24 hours' notice or such less notice ordered by the Court.

        8 Reserve costs of the proceedings.

        9 Stand the proceedings over for further directions on [date].
        SCHEDULE

        The whole of the proceedings; or

        The following questions arising in the proceedings, namely [state the questions].

        ANNEXURE 3
        USUAL ORDER FOR HEARING

        Experts’ Reports
        1. In any case in which there is expert evidence to be relied upon by the parties, the experts are to meet no later than 3 weeks before trial for the purpose of reaching agreement on as many issues as possible and producing:
            1.1 a joint report and
            1.2 any separate report(s) dealing with those matters that are unable to be agreed.

        2. The joint report and any separate report(s) are to be filed and served no later than 5 working days before trial.

        3. In cases in which expert evidence is to be given concurrently, the experts are to meet no later than 3 weeks prior to trial for the purpose of producing:
            3.1 a joint report
            3.2 any separate report(s) dealing with those matters that are unable to be agreed and
            3.3 a draft agenda for discussion of the contested issues in the concurrent evidence session at trial.

        4. The joint report and any separate report(s) and the draft agenda are to be filed and served no later than 5 working days before trial.

        Affidavits and Statements
        5. Where no directions have been given for the service of affidavits or statements of evidence, each party shall, not less than 28 days before the date fixed for hearing, serve on each other party a statement of the evidence proposed to be led from each witness to be called by that party, signed by the proposed witness, unless the Court otherwise orders.

        6. Where directions have been given for the service of affidavits or statements of evidence, or where paragraph 2 of this order applies:
            6.1 a party who fails to comply with an order made for the service of affidavits or statements of evidence, or with paragraph 2 of this order, may not adduce evidence to which the order, or paragraph 2 of this order, applies without the leave of the Court
            6.2 at least 14 days before the date fixed for hearing each party shall, by notice in writing to each other party, state whether he or she proposes to object to the whole or any part of any affidavit or statement of evidence and the grounds for the objections
            6.3 the Court may, on such terms as it thinks fit, direct that the statement of evidence served, or part of it, stand as the evidence in chief of the witness, or as part of such evidence
            6.4 if the affidavit is not read or the maker of the statement of evidence is not called as a witness, no other party may put the affidavit or statement in evidence without the leave of the Court
            6.5 if the affidavit is read or the maker of the statement of evidence called as a witness, then save in relation to new matters which have arisen in the course of the trial, the party serving the affidavit or statement may not lead evidence from the deponent or the maker of the statement of evidence (as the case may be), the substance of which is not included in the affidavit or statement of evidence served without the leave of the Court
            6.6 whether or not the affidavit or statement of evidence or any part of it is used in evidence by the party calling the witness, if the deponent or the maker of the statement of evidence is called as a witness any other party may use the affidavit or statement of evidence or any part of it in cross-examination of the witness unless the Court otherwise orders and
            6.7 nothing in this order shall otherwise deprive any party of any proper objection to the admissibility of evidence.

        Documents –Court Book
        7. In preparing evidence for trial the plaintiff/cross-claimant is to place into the Electronic Court Book in chronological order all documents referred to in any affidavit or statement proposed to be relied upon at trial. The method of numbering of documents in the Electronic Court Book must ensure that the numbers allocated to documents do not change.
        8. In responding to the plaintiff’s/cross-claimant’s evidence, the defendant/cross-defendant is to place into the Electronic Court Book all documents not already included that are referred to in any affidavits or statements proposed to be relied upon at trial.
        9. By no later than 6 weeks before the date fixed for hearing each party must notify each other party in writing of any additional documents that party proposes should be included in the Electronic Court Book.

        10. Within 10 working days thereafter each party shall advise each other party in writing:
            10.1 which of the specified additional documents may be included in the Electronic Court Book by consent
            10.2 whether the authenticity of any document, and if so which, is disputed and
            10.3 insofar as any document (already included and/or proposed to be included) may not be included in the Electronic Court Book by consent the grounds for the objection to its inclusion.

        11. Not later than 3 weeks prior to the date fixed for hearing all documents, whether by consent or otherwise, sought to be relied upon by all parties are to be included in the proposed Electronic Court Book in chronological order.

        12. If any party requires the tender of an original document, notice in writing should be given to all other parties no later than 4 weeks before the date fixed for hearing.
        13. Subject to an order of the Court or unless otherwise agreed between the parties, compliance with paragraph 15 requires the provision of the Court Book in electronic form and a hard copy of those parts of the Court Book that it will be essential for the Court to refer to in determining the dispute between the parties.

        Filing with the Court
        14. No later than 10 working days before the hearing all parties’ barristers or solicitors shall cause to be filed with the Court a folder of all affidavits, statements and reports to be relied upon at trial with an index setting out in alphabetical order:
            14.1 the name of the deponent or maker of the statement or report
            14.2 the date of the affidavit, statement or report and
            14.3 a short statement identifying the role of the deponent or the maker of the statement or report.
        15. No later than 5 working day before the hearing the plaintiff shall file, paginated and indexed, two copies of the Court Book intended to be tendered at the hearing by any party. The index of documents should indicate documents the tender of which is agreed and, in relation to the documents as to which there is no agreement, which documents they are and whether lodged on behalf of the plaintiff or on behalf of any other party to the proceedings and, if so, which party.

        16. No later than 2 workings day before the hearing each barrister or solicitor shall cause to be filed and served a short outline of submissions; a statement of the real issues for determination; a list of authorities; and a chronology of relevant events.

        17. Compliance with orders 15 and 16 is to be by delivery to the trial Judge’s Associate or, if the identity of the trial Judge is unknown at the time for compliance, by delivery to the List Judge’s Associate.




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