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Practice Note No. SC CL 5

REPLACED - General Case Management List


Date:
08/17/2005





    PRACTICE NOTE SC CL 5

    Supreme Court Common Law Division - General Case Management List

    Commencement
    1. This Practice Note commences 17 August 2005.

    Application
    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.

    Definitions
    3. In this Practice Note:
      ADR means Alternative Dispute Resolution
      CPA means the Civil Procedure Act 2005
      GCM means General Case Management
      GCM document means the document mentioned in paragraph 11 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 proceedings in which a claim is made for damages for personal injury or disability
      UCPR means Uniform Civil Procedure Rules 2005

    Introduction
    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:
    • all active proceedings commenced by statement of claim;
    • proceedings transferred from another court or from another division of the Supreme Court; and
    • any other proceedings the court directs that it applies to.
      6. GCM does not apply to:
      • proceedings in the Defamation List;
      • proceedings in the Professional Negligence List;
      • proceedings in the Possession List; and
      • proceedings that are commenced in the Administrative Law List.
      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. 3.3 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.

      Directions Hearings
      15. Proceedings in the List will be managed by way of Directions Hearings, the first of which will be appointed for approximately 3 months after proceedings are entered in the List.

      16. 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 for cases to be heard at a venue other than Sydney may be conducted by telephone, for one or more of the parties. Parties wishing to avail themselves of this facility 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 supreme_court@courts.nsw.gov.au. 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
      21. The originating process and pleadings should be as brief and precise as the nature of the case allows.

      22. It is expected that the parties’ legal representatives will have discussed the case before the initial Directions Hearing and will have:
      • narrowed issues;
      • agreed on suitable interlocutory orders, directions or arrangements;
      • prepared a draft timetable for the future management of the proceedings;
      • prepared draft short minutes of any orders or directions to be sought at the Directions Hearing; and
      • discussed the possibility of settling the dispute by ADR.

      Representation
      23. 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.

      Action at a directions hearing
      24. A Registrar conducts a Directions Hearing.

      25. All parties attend a Directions Hearing where the orders and directions made are designed to resolve the case as quickly as possible. The tasks at a Directions Hearing include, but are not limited to:
      • considering whether the proceedings would more appropriately be heard in the District Court and making a consent order accordingly;
      • defining the matters in issue, including liability. If no defence (or defence to cross-claim) has been filed the registrar may direct that there be judgment as to liability on that claim;
      • considering whether there should be a separate trial of the liability issue held before the trial of issues as to quantum, especially in the case of a child plaintiff where the assessment of damages may take some time before being able to be determined;
      • directing that a party or all parties serve or file and serve witness statements - the purpose of such directions being to facilitate clarification of issues and realistic negotiations for settlement;
      • considering whether ADR is suitable;
      • establishing whether any party requires a trial by jury (bearing in mind the provisions of UCPR 29.2);
      • making consent orders for the completion at the earliest possible time of interlocutory steps such as discovery, interrogatories, views, medical examinations etc;
      • giving directions to ensure that the proceedings will be adequately prepared for trial within the time which the court fixes;
      • giving directions as to the date by which each party should provide a schedule stipulating the components of damage that party would allow if liability was not in issue; and
      • referring the matter to callup on a day after the time for compliance of the last direction made.

      26. The purpose of the 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 which cannot be cured by paragraph 33(a).

      Alternative Dispute Resolution
      27. At any Directions Hearing, the Court may consider whether the proceedings are suitable for ADR.

      28. ADR includes: -
      • mediation pursuant to the provisions of Part 4 of the CPA or otherwise;
      • arbitration pursuant to the provisions of Part 5 of the CPA.

      29. 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.

      30. The Court may give directions requiring statements from parties including a timetable to enable parties to be prepared for mediation.

      31. Where proceedings involve a claim for damages in respect of personal injuries or in respect of the death of any person, the Court will, at the Directions Hearing, refer the proceedings for arbitration by a single arbitrator, unless it appears to the court that there is good reason why the matter should not be the subject of arbitration.

      32. Where the court refers proceedings for arbitration, the court may give directions for the conduct of the arbitration.

      Variation of directions and timetable
      33. 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.

      34. 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
      35. When ready for trial, proceedings will be referred to the Common Law call-up for a Hearing date to be allocated. At the Directions Hearing where matters involving personal injury claims are referred to call-up, standard directions in the form of Appendix B are deemed to have been made, unless the Court otherwise orders.

      Expert witnesses in personal injury actions
      36. The Court is concerned about the excessive number of experts qualifying to give evidence and giving evidence in personal injury cases. The practice of having a large number of experts qualifying, both medical and otherwise, whose opinions are commonly 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 SC Gen 10 which deals with “Single Expert Witnesses”.

      37. Where it is considered that an unnecessary expert has qualified or is sought to be called to give evidence, then the Court may:
      • reject the tender of the expert's report;
      • refuse to allow the expert to be called; and
      • disallow any costs incurred in qualifying, in having the expert's report prepared or in calling the expert to give evidence.

      38. 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 specialty, unless there is a substantial issue as to ongoing disability, in which case the number shall be limited to two in any relevant specialty concerning that disability; and
      (b) two experts of any other kind.

      39. 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.

      Single expert witnesses
      40. This part of the Practice Note applies to all proceedings in which a claim is made for damages for personal injury or disability.

      41. Unless cause is otherwise shown, a single expert direction will be made in every proceeding and at the earliest practicable time in the course of case management.

      42. 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:
      • Any expert evidence is confined to that of a single expert witness in relation to any one head of damages, including but not limited to the nature, extent and cost of required nursing care or domestic care (including claims under Griffiths v Kerkmeyer and under Sullivan v Gordon), physiotherapy, speech therapy, home modification, motor vehicle or aids and equipment, being evidence of the kind customarily given (by way of example) by rehabilitation consultants, occupational therapists, nursing and domestic care providers, architects, builders, motor vehicle consultants, and by aids and equipment suppliers.
      • Evidence may be provided by the same single expert in relation to more than one head of damages provided the expert is appropriately qualified. It is contemplated, however, that there may be a number of single expert witnesses retained or appointed in the one proceedings.
      • In relation to any head of damages as to which any party wishes expert evidence to be adduced, the parties are to agree on a single expert to be retained and are to obtain the concurrence of the expert within 14 days from a date specified in the order as the commencement date of the direction, otherwise within 14 days from the making of the direction.
      • Failing agreement and concurrence within that time, the parties are to notify the court forthwith, and the court will, pursuant to Part 31 of the UCPR, appoint a Court expert to be the single expert.
      • Within 14 days from the selection or appointment of a single expert witness, the parties are to brief the expert, in such manner as the parties may agree, with materials sufficient to enable the expert to prepare a report. If the parties do not so agree, they are to notify the court forthwith and the court will give directions as to how the single expert witness is to be briefed.
      • If the parties agree or the single expert witness so requests, the plaintiff in the proceedings is to submit to clinical examination by the single expert witness.
      • Within 21 days from the date on which a single expert witness is so briefed, the expert is to send his or her report to each of the parties to the proceedings, through their legal representatives.
      • A single expert witness may be requested to provide a supplementary report taking into account any new or omitted factual material. The provisions of this part of the practice note apply to such a supplementary report mutatis mutandis.
      • Any party may, within 14 days from receipt of the report, put a maximum of 10 written questions to the expert, but for the purpose only of clarifying matters in the report unless the court otherwise grants leave. The expert is to answer the questions within 14 days.
      • The report of a single expert witness and any question put to the expert and the expert’s answer thereto may be tendered by any party at the trial subject to all just exceptions.
      • A single expert witness may be cross-examined at the trial by any party.
      • A single expert witness’s fee for preparation of the report and any supplementary report and for attending Court, if required to do so, is to be paid by the parties equally, subject to other agreement or direction and subject to any later order concerning the costs of the proceedings. A single expert witness’s fee for answering questions put by a party is to be paid by the party, subject to the same qualification.
      • A single expert witness may apply to the Court for directions.

      43. Nothing in this part of the Practice Note is intended to require the retaining or appointment of a single expert witness in relation to liability, the nature or extent of injury or disability, or the causation of injury or disability.

      APPENDIX A

      44. 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.

      45. 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.

      46. A statement in a GCM document about the expected need for discovery or interrogatories does not preclude a later application in accordance with the rules for such interlocutory steps.

      47. 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.

      48. 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.
          P1.1.3 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;
          P1.1.4 where the plaintiff is represented by a solicitor, a statement by the solicitor setting out the solicitor’s opinion about:-
              (a) whether it is likely that discovery of documents will be needed;
              (b) whether it is likely that interrogatories will be needed and, if so, why;
              (c) whether it is likely that the plaintiff will require expert evidence (other than medical evidence on quantum of damages) and, if so, in what area of expertise;
              (d) any special feature of the plaintiff’s claim that might affect the complexity or length of the trial; and
              (e) whether the exchange of witness statements or affidavits would be likely to assist the early resolution of the matter;
          P1.1.5 a statement of:-
              (a) in the case of an action that includes a motor accident claim (as defined by the District Court Act 1973) - why the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1,000,000 and why the case involves complex legal issues or issues of general public importance;
              (b) in any other case claiming damages in respect of personal injury or death - why the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000 or why there is other sufficient reason for trying the action in the Court (for example: that it is a test case, a matter of public interest or otherwise affecting the personal reputation of one or other of the parties); or
              (c) in any other case - why the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $450,000 or why there is other sufficient reason for trying the action in the Court.

      P1.2 Where the plaintiff’s claim is for damages for personal injury or in respect of the death of any person, the plaintiff is to annex to the GCM document:-
          P1.2.1 a copy of any relevant report concerning the accident or injury.
      Defendant’s GCM document

      D2.1 The defendant’s GCM document is to contain:-
          D2.1.1 a concise narrative of the facts the defendant intends to prove on the issue of liability, including contributory negligence, so drafted as to expose the specific matters of fact upon which liability is likely to depend;
          D2.1.2 a description (name, place of residence, place of business and occupation) of any person from whom the defendant believes, upon his or her then state of knowledge, that the defendant may be entitled to contribution or indemnity if the plaintiff gains judgment against the defendant; the defendant must include this information even if he or she currently does not intend to join this person as an additional defendant;
          D2.1.3 where the defendant is represented by a solicitor, a statement by the solicitor setting out the solicitor’s opinion about:-
              (a) whether it is likely that discovery of documents will be needed;
              (b) whether it is likely that interrogatories will be needed and, if so, why;
              (c) whether it is likely that the defendant will require expert evidence (other than medical evidence on quantum of damages) and, if so, in what area of expertise;
              (d) any special feature of the plaintiff’s claim or the defendant’s defence that might affect the complexity and length of the trial; and
              (e) whether the exchange of witness statements or affidavits would be likely to assist the early resolution of the matter;
          D2.1.7 a statement of any reason for which it will be submitted that the action is not appropriate to be brought in the Supreme Court.

      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 (unless the document has been provided to the plaintiff pursuant to paragraph 48):-
          D2.2.1 a copy of any claim form or written report of the injury or accident the defendant or its insurer has received from the plaintiff;
          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
          D2.2.5 a list of relevant photographs, films or video tapes in the possession of the defendant, and a statement of the arrangements proposed by the defendant for the viewing thereof by any other party.
          Note: where the defendant claims that there is a legitimate forensic reason why the existence or contents of any such medical certificate, medical report, photograph, film or video tape should not be disclosed prior to trial, the defendant may, prior to a Directions al, apply ex parte (without filing a notice of motion) to a registrar in chambers, upon an affidavit of the relevant circumstances, for an order that the same be not disclosed in the GCM document. The applicant for such an order shall produce to the registrar a draft order for signature, which order (if made) having been made, should be delivered to the applicant and not retained in the court file.
      Cross-Claimant’s GCM document

      XC3.1 A cross-claimant’s GCM document is to contain:-
          XC3.1.1 a concise narrative of the facts the cross-claimant intends to prove on the issue of the cross-defendant’s liability, so drafted as to expose the specific matters of fact upon which liability is likely to depend;
          XC3.1.2 where the cross-claimant is represented by a solicitor, a statement by the solicitor setting out the solicitor’s opinion about:-
              (a) whether it is likely that discovery of documents will be needed;
              (b) whether it is likely that interrogatories will be needed and, if so, why;
              (c) whether it is likely that the cross-claimant will require expert evidence (other than medical evidence on quantum of damages) and, if so, in what area of expertise;
              (d) any special feature of the plaintiff’s claim or the cross-claimant’s claim that might affect the complexity or length of the trial; and
              (e) whether the exchange of witness statements or affidavits would be likely to assist the early resolution of the matter.
          XC3.1.3 any information of the type referred to in P1.2.1 that the cross-claimant knows;
          XC3.1.4 where the plaintiff’s claim is for damages for personal injury or in respect of the death of any person, list of relevant photographs, films or video tapes in the possession of the cross-claimant, and a statement of the arrangements proposed for the viewing thereof by any other party.
          Note: where the cross-claimant claims that there is a valid forensic reason why the existence or contents of any such photograph, film or video tape should not be disclosed prior to trial, the cross-claimant may, prior to a Directions Hearing, apply ex parte (without filing a notice of motion) to a registrar in chambers, upon an affidavit of the relevant circumstances, for an order that the same be not disclosed in the GCM document. The applicant for such an order shall produce to the registrar a draft order for signature, which order (if made) having been made, should be delivered to the applicant and not retained in the court file.
      Cross-Defendant’s GCM document

      XD4.1 A cross-defendant’s GCM document is to contain:-
          XD4.1.1 a concise narrative of the facts the cross-defendant intends to prove on the issue of liability, including contributory negligence, so drafted as to expose the specific matters of fact upon which liability is likely to depend;
          XD4.1.2 where the cross-defendant is represented by a solicitor, a statement by the solicitor setting out the solicitor’s opinion about:-
              (a) whether it is likely that discovery of documents will be needed;
              (b)whether it is likely that interrogatories will be needed and, if so, why;
              (c)whether it is likely that the cross-defendant will require expert evidence (other than medical evidence on quantum of damages) and, if so, in what area of expertise;
              (d) any special feature of the plaintiff’s claim or of the cross- claim or the cross-defendant’s defence that might affect the complexity or length of the trial; and
              (e) whether the exchange of witness statements or affidavits would be likely to assist the early resolution of the matter.
          XD4.1.3 where the plaintiff’s claim is for damages for personal injury or in respect of the death of any person, a list of relevant photographs, films or video tapes in the possession of the cross-defendant, and a statement of the arrangements proposed by the cross-defendant for the viewing thereof by any other party.
          Note: where the cross-defendant claims that there is a valid forensic reason why the existence or contents of any such photograph, film or video tape should not be disclosed prior to trial, the cross-defendant may, prior to the Directions Al, apply ex parte (without filing a notice of motion) to a registrar in chambers, upon an affidavit of the relevant circumstances, for an order that the same be not disclosed in the GCM document. The applicant for such an order shall produce to the registrar a draft order for signature, which order (if made) having been made, should be delivered to the applicant and not retained in the court file.

      XD4.2 Where the plaintiff’s claim is for damages for personal injuries:-
          XD4.2.1 a copy of any claim form or written report of the injury or accident the cross-defendant or its insurer has received from the plaintiff or the cross-claimant (unless the document has been provided to the plaintiff pursuant to paragraph 48);
          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.

      APPENDIX B
        48. The plaintiff’s legal representative is to prepare a draft chronology of relevant events in the matter and serve a copy of it upon other parties which have an address for service at least 4 weeks prior to the hearing date allocated by the List Judge.

        49. Each party is to prepare
        a draft schedule of damages, outlining in detail the heads of damages, and what damages are likely to be, in the event of liability being established; and
        a draft schedule of issues.

        50. A joint chronology, schedule of damages and schedule of issues, outlining the areas of agreement and dispute, are to be filed by the plaintiff at least 7 days prior to the hearing date.




        J J Spigelman AC
        Chief Justice of New South Wales
        17 August 2005

        Related Information
        Practice Note SC CL 5 was issued and commenced on 17 August 2005.
        This Practice Note replaced Former Practice Note No. 128 on 17 August 2005.

        See also:
        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


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