Commencement
1. This Practice Note was issued on 26 July 2011 and commences on 1 August 2011.
Application
2. This Practice Note applies to all cases in the Equity Division that are case managed by the Registrar in Equity.
Role of the Registrar in Case Management
3. The Registrar in Equity will manage the cases in the Division with the aim of ensuring the just, quick and cheap resolution of the real issues between the parties.
4. The Registrar in Equity case manages proceedings each day at 9am or 9.15 am. The times for the commencement of directions and/or special fixtures and the Court location may change and Practitioners and parties should always check the daily Court Lists prior to attendance at Court.
The Role of Practitioners in Case Management
5. The Court’s expectations of Practitioners appearing before the Registrar in Equity include that:
5.1. they have advised their clients of the effect of the provisions of the sections 56 to 61 inclusive of the Civil Procedure Act 2005;
5.2. they will carefully review the case for the purpose of informing the Court as early as practicable of: a suitable date for mediation; the suitability of 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;
5.3. they will assist the Court to prepare the case for hearing by putting in place a timetable that will take the matter up to a date for hearing with the aim of having as few directions hearings as possible.
5.4. 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;
5.5. trial counsel will be briefed as early as possible and consultation will occur between respective counsel and/or solicitors to ensure accurate estimates for trial are given when the matter is set down for hearing;
5.6. if there is slippage in an agreed timetable, the parties will agree to an amendment of that timetable without the need for intervention by the Court and forward a Consent Order to the Registrar so that Orders may be made in Chambers or the matter re-listed for further directions;
5.7. requests for Court intervention in relation to timetabling will only be sought rarely when, for good reason, agreement has proved to be impossible;
5.8. there will be sensible co-operation between the Practitioners for the respective parties in preparing the Court Book, referred to in the Usual Order for Hearing in Annexure A to this Practice Note, so that agreement is reached on the most efficient and cost-effective method of preparing it.
The Role of Self-Represented Parties in Case Management
6. Any party that appears before the Registrar without legal representation must make themselves aware of the effect of the provisions of sections 56 to 61 inclusive of the Civil Procedure Act 2005. The Court expects self-represented parties to comply with paragraphs 5.2 – 5.4 and 5.6 – 5.8 of this Practice Note in the same manner as Practitioners.
Affidavits
7. Affidavits in the main case are not filed with the Court until final hearing. Provision should be made in the timetables for service (not filing) of those affidavits. Affidavits in support of Notices of Motion are filed with the Court and provision should be made in the timetables for the filing and service of those affidavits.
Expert Evidence
8. In any case where expert assistance to the Court will be necessary for the determination of the real issues in dispute the parties are to provide to the Registrar a Consent Order setting out agreement that leave to call expert evidence should be granted and including:
(a) the issue(s) in respect of which the Court will need expert assistance;
(b) the name(s) of and field of expertise of any proposed witness(es) who is (are) to assist the Court;
(c) the questions to be answered or the issues to be addressed by the expert(s);
(d) a timetable for the preparation of the expert report(s) including, if there is more than one expert in a particular field, the date by which the experts are to meet and the date for the provision to the parties of the joint report;
(e) a note as to whether the case is suitable for the expert assistance to be provided in concurrent session.
9. If there is a dispute about whether expert assistance to the Court is required for the determination of the real issues in dispute and/or whether leave to call expert evidence should be granted, the Registrar will refer the dispute to the Chief Judge in Equity or another judge of the Division nominated by the Chief Judge.
Consent Orders
10. To facilitate the just, quick and cheap resolution of matters Consent Orders will be made by the Registrar in Chambers on application in writing, electronically or otherwise. When the parties request the Registrar to make Consent Orders in Chambers, 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 and provision for a future listing.
Slippage
11. If there is a failure to comply with any of the orders in the Usual (or Modified) Order for Hearing, the parties must re-list the matter before the Registrar (or the Trial Judge) or alternatively file Consent Orders with the Registrar (or the Trial Judge) to adjust the timetable to ensure the hearing date is not jeopardised.
Usual Order for Hearing
12. When the matter is set down for hearing the Registrar will make the Usual Order for Hearing contained in Annexure A to this Practice Note. If for any reason the parties are of the view that the Usual for Order for Hearing should be modified, they must provide a Consent Modified Order for Hearing on the day the matter is set down for hearing.
13. If it is not possible to agree on a Consent Modified Order for Hearing, application should be made to the Registrar to modify the Usual Order for Hearing in the form of a draft order to be provided to the Registrar together with the detail of the basis for such modification.
14. Notwithstanding the making of the Usual (or Modified) Order for Hearing, the Trial Judge may notify the parties that a pre-trial direction will be held prior to the hearing date.
T F Bathurst
Chief Justice of New South Wales
26 July 2011
Related information
See also:
Supreme Court Practice Note SC Eq 8 – Urgent Matters in the Equity Division
Civil Procedure Act 2005
Amendment history
1 August 2011: This Practice Note replaces the previous version of SC Eq 1 that was issued on 14 October 2009.
14 October 2009: This Practice Note replaces the previous version of SC Eq 1 that was issued on 17 August 2005.
ANNEXURE A
USUAL ORDER FOR HEARING
By no later than 3 working days before the trial date the parties are to provide to the Associate to the Trial Judge a Court Book consisting of all evidence, any objections thereto (limited to those that are essential having regard in particular to s 190(3) of the Evidence Act 1995) and a short outline of submissions.
