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Practice Note No. 100

REPEALED - Commercial List and Technology and Construction List


Date:
10/19/2001


    PRACTICE NOTE No 100


    COMMERCIAL LIST

    and

    TECHNOLOGY AND CONSTRUCTION LIST


    Introduction

    1 This practice note applies to proceedings entered or to be entered in the Commercial List or in the Technology and Construction List (the “Lists”).

    2 The Commercial List and the Technology and Construction List are conducted by Judges of the Equity Division

    3 Deleted

    4 Parts 14 and 14A of the Supreme Court Rules remain in force (with certain amendments), but it is expected that this Practice Note will be observed by way of additional provision for the conduct of proceedings entered in either of the Lists. Practice Notes 43, 46 and 63 shall not apply to proceedings entered in the Technology and Construction List.

    5 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, shall apply to be relieved from compliance and shall propose the alternative course which it considers will be possible and conducive to such disposal. The Court will make orders and give directions appropriate to meet the situation.

    Entry in the Lists

    6 (1) Where the plaintiff makes a requirement under Part 14 rule 6 or under Pt 14A rule 4, the summons shall be in the form in Annexure 1, endorsed with a statement setting out, in summary form:

          (a) the nature of the dispute;

          (b) the issues which the plaintiff believes are likely to arise;

          (c) the plaintiff's contentions; and

          (d) what questions (if any) the plaintiff considers are appropriate to be referred to a referee for inquiry and report.

      (2) The plaintiff's contentions should:
          (a) avoid formality;

          (b) state the facts on which the plaintiff relies together with adequate particulars; and

          (c) identify the legal grounds for the relief claimed.


      7 (1) A defendant who requires proceedings to be entered in the Technology and Construction List by a requirement on the defendant's notice of appearance or defence shall file and serve with the notice of appearance or defence, as the case may be, a statement setting out, in summary form:
          (a) the nature of the dispute;

          (b) the issues which the defendant believes are likely to arise;

          (c) the defendant's contentions; and

          (d) what questions (if any) the defendant considers are appropriate to be referred to a referee for inquiry and report.

      (2) The defendant's contentions should:
          (a) avoid formality;

          (b) admit or deny the facts on which the plaintiff relies;

          (c) so far as they do not appear from (b), state the facts on which the defendant relies and contain adequate particulars of those facts; and

          (d) identify the legal grounds for opposition to the relief claimed.

      8 (1) A party moving for an order for entry of any proceedings in either of the Lists shall so move at the earliest possible time and shall file and serve with the notice of motion a statement setting out, in summary form:
          (a) the nature of the dispute;

          (b) the issues which that party believes are likely to arise;

          (c) that party's contentions, which should comply with para 6(2) or para 7(2), as the case may be;

          (d) what questions (if any) that party considers are appropriate to be referred to a referee for inquiry and report; and

          (e) an explanation for any delay that may have occurred in moving for the order.

      (2) Any motion for an order for entry of proceedings in either of the Lists shall be made returnable before the Judge for the time being conducting the directions hearings referred to in para 10 hereof.

      Removal from the Lists

      9 (1) Upon an order being made removing proceedings from either of the Lists, this Practice Note shall, subject to sub-para (2), not apply to the proceedings from the making of the order.

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

      (3) 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.

      Directions hearings

      10 Directions hearings will be appointed for 9.30 am on each Friday during term. Proceedings may be listed at different times on each Friday and the daily list should be consulted.

      11 (1) In the case of proceedings commenced by summons and entered in either of the Lists, the proceedings shall be before the Court for directions on the return date for the summons.

      (2) In the case of proceedings entered in either of the Lists by a requirement on the notice of appearance or defence, the defendant shall move for directions by notice of motion filed at the same time as the defendant's notice of appearance or defence as the case may be.

      (3) A party moving for an order for entry of any proceedings in either of the Lists shall at the same time move for directions.

      12 At the first directions hearing:

      (a) any party who has not filed a statement as referred to in para 6, 7 or 8 will be required to inform the Court:

      (i) whether or not the party is in agreement with the opposing party's statement of the nature of the dispute and of the issues likely to arise;

      (ii) if the party does not agree, what that party believes to be the nature of the dispute and the issues likely to arise;

      (iii) which of the opposing party's contentions is contested;

      (iv) what the party's contentions are in relation to the dispute; and

      (v) what questions (if any) the party considers are appropriate to be referred to a referee for inquiry and report;

      (b) the defendant must be prepared to inform the Court whether or not the defendant wishes to cross-claim against any other person (whether a party or not) and of the substance of any cross-claim; and

      (c) all parties should be prepared to inform the Court whether they consider that the dispute is or will be suitable for mediation or neutral evaluation or other alternative dispute resolution procedure and whether they consent to referral for mediation or neutral evaluation.

      13 (1) At the first directions hearing 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:

          (a) the filing of points of claim, points of defence or other documents;

          (b) the filing of cross-claims;

          (c) the filing of a statement of agreed issues and the result in the proceedings according to the determination of those issues;

          (d) the provision of any essential particulars;

          (e) the making of admissions, pursuant to a notice to admit facts or otherwise;

          (f) the delivery or exchange of experts' reports;

          (g) the holding of conferences of experts;

          (h) the filing of lists of documents either generally or with respect to specific matters;

          (i) the preparation of a Scott Schedule;

          (j) the provision of copies of documents;

          (k) the administration and answering of interrogatories either generally or with respect to specific matters;

          (l) the service and filing of affidavits or statements of evidence by a specified date or dates;

          (m) the reference to a referee for inquiry and report of the whole of the proceedings or any question arising therein;

          (n) the appointment of an expert as a Court expert and the giving to him or her of authority, directions and instructions; and

          (o) the obtaining of the assistance of any person specially qualified to advise on any matter arising in the proceedings.

      (2) Any defence filed pursuant to a direction should:
          (a) avoid formality;

          (b) admit or deny the facts on which the plaintiff relies;

          (c) so far as they do not appear from (b), state the facts on which the defendant relies and contain adequate particulars of those facts; and

          (d) identify the legal grounds for opposition to the relief claimed.

      (3) 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 demonstrated need being established in respect to particular matters.

      14 At any directions hearing proceedings will be listed at a specified future date for a further directions hearing or for the purpose of fixing a date for hearing. Orders will be made and directions given at any directions hearing subsequent to the first directions hearing with a view to the just, quick and cheap disposal of the proceedings. The orders or directions may relate to the same matters as are referred to in para 13.

      Orders for reference

      15 (1) Consideration should be given throughout the course of proceedings to whether any questions are appropriate for referral to a referee for inquiry and report.

      (2) Where questions are appropriate to be referred to a referee for inquiry and report, the parties should:

          (a) formulate the questions with precision; and

          (b) inform the Court of:

      (i) an agreed referee or, if no agreement can be reached, the referee each suggests;

      (ii) the date on which the referee can commence the reference;

      (iii) the expected duration of the reference; and

      (iv) the anticipated date for delivery of the report.

      (3) 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.

      Cross-claims

      16 Unless the Court otherwise orders, any cross-claimant shall:

          (a) serve with the cross-claim a copy of the originating process and of any of the following documents that have been filed in the proceedings but have not previously been served on the cross-defendant:
      (i) points of claim;

      (ii) a cross-claim;

      (iii) points of defence;

      (iv) any other document that sets out the claim or defence of any party to the proceedings;

          (b) include in the cross-claim a statement setting out, in summary form:
      (i) the nature of the dispute as between the cross-claimant and the cross-defendant;

      (ii) the issues which the cross-claimant believes are likely to arise;

      (iii) the cross-claimant's contentions; and

      (iv) what questions (if any) the cross-claimant considers are appropriate to be referred to a referee for inquiry and report; and

      (c) include in the cross-claim an endorsement that at the time the cross-defendant is required to attend before the Court the proceedings will be before the Court for directions and the cross-defendant will be required to inform the Court:

      (i) whether or not the cross-defendant is in agreement with the cross-claimant's statement of the nature of the dispute as between the cross-claimant and the cross-defendant and of the issues likely to arise;

      (ii) if the cross-defendant does not agree, what the cross-defendant believes to be the nature of the dispute as between the cross-defendant and the cross-claimant and the issues likely to arise;

      (iii) which of the cross-claimant's contentions is contested;

      (iv) what the cross-defendant's contentions are in relation to the dispute;

      (v) what questions (if any) the cross-defendant considers are appropriate to be referred to a referee for inquiry and report; and

      (vi) whether or not the cross-defendant wishes to cross-claim against any other person (whether a party or not) and of the substance of any such cross-claim.

      17 The provisions of this Practice Note, with such changes as the case requires, otherwise shall apply to cross-claims.

      Representation

      18 (1) 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.

      (2) 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

      19 (1) 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 Clerk on 9230 8661 or 9230 8081, who will advise the party of the Judge to whom application should be made. If the Commercial List Clerk is not available the party should telephone the associate to the Judge administering the Commercial List.

      (2) 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 telephone the Commercial List Clerk, who will advise the party of the directions hearing at which the proceedings will be listed.

      Listing for hearing

      20 (1) Where the hearing or any part of it will be before the Court, a date for hearing may be fixed prior to completion of interlocutory steps.

      (2) Proceedings will normally be listed at 2.00 pm on a Friday for the purposes of fixing a date for hearing, at which time the Court should be provided with a realistic estimate of the hearing time required. 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.

      Experts

      21 Where experts' reports have been or are to be served (whether pursuant to an order or direction of the Court or not) the Court may 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 and a proper understanding of any points of difference between them and the reasons therefor and a narrowing of such points of difference.

      22 The Court may direct, at the same time as or subsequent to directing the causing of a conference as referred to in para 21, that the parties prepare an agreed statement of the points of agreement, and of difference remaining, between experts following such conference and the reasons therefor.

      Costs

      23 Unless otherwise ordered, a party in whose favour an order for costs is made may proceed to assessment of such costs forthwith.

      Alternative dispute resolution

      24 Consideration of the use of alternative dispute resolution “ADR” procedures is encouraged. Apart from the requirement under the Rules that parties inform the Court when proceedings are first listed whether they consent to referral for mediation or neutral evaluation, the lawyers for the parties and the parties should have in mind the use of ADR procedures and the Judges will in appropriate cases draw attention to their possible use and require that failure to engage in ADR be explained.

      Summary judgment

      25 The observation in the commentary to Practice Note 89, that as a general rule applications to strike out or for summary judgment will not be entertained, requires emphasis. Sometimes applications are appropriate, but increasingly applications are made which have little to commend them and only cause delay and additional costs. Practitioners should expect greater strictness in declining to entertain such applications.

      Bulky documents

      26 There is a particularly worrying tendency for the bundles of documents required under the usual order for hearing to be of great size, with copies of bulky documents of marginal relevance or relevant only as to a few pages and many documents which are not referred to either in the course of the evidence or in submissions. The cost of unnecessary photocopying and assembly is unacceptable. It is incumbent on the lawyers for the parties to carefully consider the documents necessary to be included in the bundle. Excessive documents may attract adverse costs orders with greater frequency than in the past

      Use of technology

      27 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.

          Chief Justice

      12 August 1998

      This Practice Note was re-issued, with amendments, on 19 October 2001 with effect from 1 January 2002.


      ANNEXURE 1

                                              para 6
      FORM OF SUMMONS

      ____________________________________________________________________
      IN THE SUPREME COURT OF NEW SOUTH WALES SYDNEY REGISTRY

      EQUITY DIVISION

      COMMERCIAL LIST


      [or]

      TECHNOLOGY AND CONSTRUCTION LIST

      No of 20

      ______________________


      SUMMONS

      Filed for (Full name of

      filing party)

      _____________________

      [NAME OF PLAINTIFF]

      Plaintiff

      [NAME OF DEFENDANT]

      Defendant



      [NAME, ADDRESS, TELEPHONE NUMBER AND DX OF SOLICITOR]

      The plaintiff claims:

      1 An order that [or as required]

      2 An order that [or as required]

      [or]

      1 A declaration that

      [or]

      The plaintiff claims an order that

      To the defendant [address]

      If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified below, the proceedings may be heard and you will be liable to suffer judgment or an order against you in your absence.

      Before any attendance at that time you must enter an appearance in the registry.

      TIME:

      PLACE:

      NOTE: The plaintiff's statement, in summary form, of the nature of the dispute, the issues which the plaintiff believes are likely to arise, the plaintiff's contentions, and the questions (if any) that the plaintiff considers are appropriate to be referred to a referee for inquiry and report are set out below.

      At the time and place specified above, you must be prepared to inform the Court:

      (a) whether or not you are in agreement with the plaintiff's statement of the nature of the dispute and of the issues likely to arise;

      (b) if you do not agree, what you believe to be the nature of the dispute and the issues likely to arise;

      (c) which of the plaintiff's contentions is contested;

      (d) what your contentions are in relation to the dispute;

      (e) what questions (if any) you consider are appropriate to be referred for inquiry and report;

      (f) whether or not you wish to cross-claim against any other person (whether a party or not) and of the substance of any such cross-claim; and

      (g) whether the dispute is or will be suitable for mediation, neutral evaluation or other alternative dispute resolution procedure and whether you consent to referral for mediation or neutral evaluation.

      At the time stated the proceedings will be before the court for directions.

      PLAINTIFF: [name, address and occupation]

      PLAINTIFF'S ADDRESS

      FOR SERVICE:

      ADDRESS OF REGISTRY: Supreme Court of New South Wales

      Queens Square

      Sydney NSW 2000

      A NATURE OF DISPUTE

      B ISSUES LIKELY TO ARISE

      C PLAINTIFF'S CONTENTIONS

      D QUESTIONS APPROPRIATE FOR REFERRAL


      ANNEXURE 2


      para 15 (3)

      USUAL ORDER FOR REFERENCE

      1 Pursuant to Pt 72 r 2(1) 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 Pt 72 of the Rules.

      4 Direct that:

      (a) subject to paras (b) and (c) hereof the provisions of Pt 72 r 8 shall apply to the conduct of proceedings under the reference;

      (b) the reference will commence on [date] unless otherwise ordered by the referee;

      (c) 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:

      (i) the making of inquiries by telephone;

      (ii) site inspection;

      (iii) inspection of plant and equipment; and

      (iv) communication with experts retained on behalf of the party;

      (d) 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;

      (e) the referee submit the report to the Court in accordance with Pt 72 r 11 addressed to the Equity Division Registrar on or before [date].

      5 The referee shall have power to permit such amendments or additions to the matter in the Schedule as the referee sees fit in order to dispose of the true issues between the parties.

      6 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 as to the Court seems fit.

      7 Reserve costs of the proceedings.

      8 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

      para 20 (2)

      USUAL ORDER FOR HEARING


      1 Where no directions have been given for the service of experts' reports, if any party intends to rely on the evidence of an expert witness:

      (a) if the party has not already done so, the party shall serve a copy of the report of the expert on each other party no later than 28 days before the date fixed for hearing;

      (b) the party shall serve a copy of the report of any expert responsive to a report delivered in accordance with subpara (a) no later than 14 days before the date fixed for hearing;

      (c) at least 14 days before the date fixed for hearing (or in the case of a report referred to in subpara (b) at least 7 days before the date fixed for hearing) each party shall, by notice in writing to each other party, state whether the party proposes to object to the whole or any part of any report and the ground for the objection;

      (d) the Court may, on such terms as it thinks fit, direct that the report served or part of it, stand as the evidence in chief of the witness or as part of such evidence;

      (e) if the report is not tendered by the party who served it and the expert is not called as a witness, no other party may put the report in evidence without the leave of the Court;

      (f) if an expert is called as a witness, the party calling the expert may not lead evidence from the expert the substance of which is not included in a report already served in accordance with this paragraph, without the leave of the Court;

      (g) whether or not the report or any part of it is used in evidence by the party calling the expert, if the expert is called as a witness, any other party may use the report or any part of it in cross examination of the expert unless the Court otherwise orders; and

      (h) nothing in this order shall otherwise deprive any party of any proper objection to the admissibility of evidence.

      2 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.

      3 Where directions have been given for the service of affidavits or statements of evidence, or where para 2 of this order applies:

      (a) a party who fails to comply with an order made for the service of affidavits or statements of evidence, or with para 2 of this order, may not adduce evidence to which the order, or para 2 of this order, applies without the leave of the Court;

      (b) 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;

      (c) 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;

      (d) 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;

      (e) 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;

      (f) 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;

      (g) nothing in this order shall otherwise deprive any party of any proper objection to the admissibility of evidence.

      4 (1) At least 14 days before the date fixed for hearing each party shall, by notice in writing to each other party, specify what documents it proposes to tender at the hearing and, in the event that there has not been inspection, where the documents may be inspected.

          (2) Within 7 working days thereafter, each party shall advise each other party in writing:
      (i) which of the specified documents may be tendered by consent;

      (ii) whether the authenticity of any of the remaining documents, and if so which, is disputed; and

      (iii) in so far as any document may not be tendered by consent, the grounds for the objection to its tender.

      (3) Each party other than the plaintiff shall, not later than 5.00 pm on the fourth last working day prior to the date fixed for hearing, deliver to the plaintiff 2 copies of all documents intended to be tendered by such party at the hearing which have not been specified in the plaintiff's notice referred to in subpara (1). The plaintiff shall file, by midday on the last working day prior to the date fixed for hearing, duly paginated and indexed, two copies of the bundle of the documents 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.

      5 (1) If any party intends to tender an original document that party shall, at least 7 days before the date fixed for hearing, give notice of that intention to all other parties.

      (2) If any party requires another party to tender an original document that party shall at the time of advising in accordance with subpara 3(b) give notice of that requirement to the other party.

      (3) The party in possession of any document the subject of a notice in accordance with subpara (1) or (2) shall make the document available for inspection prior to the date of hearing at the chambers of the barrister or office of the solicitor for that party giving the notice.

      6 Where an order has been made for the filing of lists of documents:

          (a) until the conclusion of the hearing each party shall be under a continuing obligation to disclose any document relevant to any matter in issue with respect to the matters specified in the original order;
      (b) in the event that a party becomes aware that documents which have been in its possession have not been included in its list of documents, whether by reason of oversight or otherwise, that party shall forthwith include, and clearly identify, particulars of those additional documents in a supplementary list and file and serve an affidavit specifying the reason for the failure to disclose the documents in the original list;

      (c) at least 7 working days before the date fixed for hearing, each party shall file and serve a supplementary list of the documents (if any) with respect to the matters specified in the original order which have come into its possession since the time of serving its list of documents, but excluding copies of documents received pursuant to discovery from any other party and copies of subpoenaed documents to which all parties have been granted access, and shall give supplementary inspection.

      7 No later than 4.30 pm on the last working day before the hearing:

      (a) the plaintiff's barrister shall cause to be filed and served a statement of agreed issues, a chronology of relevant events and, where the number of persons who feature warrants it, a list of relevant characters;

      (b) in the event that there is no agreement, each barrister shall cause to be filed and served a statement of the issues which that barrister perceives are likely to arise;

      (c) each barrister shall cause to be filed and served a list of topics to be covered by the submissions, in the order in which they will be taken, and a list of propositions of law relied upon together with the authorities to be cited in support;

      (d) the barrister for any party other than the plaintiff may file and serve a chronology of relevant events and a list of relevant characters.

      In the event that a party will be represented at the hearing by a solicitor, this paragraph shall apply to that solicitor.

      8 Documents required by paras 4(3) and 7 of this order to be filed are to be filed by delivery to the Commercial List Clerk. Documents required by para 7 of this order to be served are to be delivered to the barrister for each opposing party or, if a party’s barrister cannot be conveniently served, to the solicitor for that party.



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