Introduction
On 1 February 2000 a Possession List (the “List”) will be established within the Common Law Division, to be administered by a Possession List Judge. A new Part 14B has been inserted in the Rules for this purpose.
It is intended that the following Common Law proceedings that include a claim for possession of land (whether or not other types of claim are also included) should be entered in the List:
(a) proceedings commenced on or after 1 February 2000 ; and
(b) other proceedings that the Court considers suitable to be entered in the List,
other than proceedings entered in the Professional Negligence List.
This practice note applies to proceedings entered, or to be entered, in the List.
Practice Note 88 shall not apply to proceedings entered in the List.
Part 17 shall continue to apply to proceedings in which a claim for possession of land is made.
Removal from the List
(1) Upon proceedings being removed from the List, 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 the List shall not affect any orders made or directions given prior to such removal.
Case Management
Status Hearings
(1) Defended proceedings in the List will be managed by way of Status Hearings, the first of which will be appointed for approximately one month after proceedings are entered in the List.
(2) Upon a defence or a cross-claim being filed, the registry will give notice to all parties with an address for service in the proceedings of the date of the first Status Hearing.
(3) Status Hearings will be held fortnightly.
Action prior to Status Hearing
(1) It is expected that, where practicable, the parties’ solicitors will have discussed the case before the initial Status Hearing and will have:
(a) narrowed issues;
(b) agreed on suitable interlocutory orders, directions or arrangements;
(c) prepared a draft timetable for the future management of the proceedings;
(d) prepared draft short minutes of any orders or directions to be sought at the Status Hearing; and
(e) discussed the possibility of settling the dispute by mediation or other ADR processes.
(2) In this practice note “ADR” means “Alternative Dispute Resolution”, which includes:
(a) mediation;
(b) neutral evaluation;
(c) arbitration;
(d) referral to a referee under Part 72 of the Supreme Court Rules; and
(e) a mini-trial (an evaluation by a judge as an expert at an abbreviated hearing with a non binding decision).
Representation
Each party not appearing in person must be represented at the Status 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 Status Hearing
At a Status Hearing the Court may give directions and make orders as it considers appropriate with a view to the just, quick, cheap and effective management and disposal of the proceedings. The orders or directions may relate to:
(a) if the List is not the most appropriate place for the proceedingsthe removal of the proceedings from the List, with consequential orders and directions;
(b) setting a timetable for case management;
(c) for the whole or any part of the evidence in the proceedings to be given on affidavit;
(d) for adjournment of the Status Hearing;
(e) the provision of any further information;
(f) the filing of other pleadings;
(g) the provision of any particulars;
(h) the making of admissions;
(i) the filing of lists of documents;
(j) the provision of copies of documents;
(k) the administration and answering of interrogatories;
(l) the service and filing of affidavits or statements of evidence;
(m) proceedings to preserve evidence.
(n) hearing of applications for summary disposal under Part 13 of the Rules or for judgment on admissions;
(o) applications under Part 15 or Part 16 of the Rules;
(p) matters relating to proof;
(q) listing for a mini-trial.
Need must be demonstrated to obtain certain orders
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.
Alternative Dispute Resolution
(1)At any Status Hearing, the Court may consider whether the proceedings are suitable for ADR.
(2) If the matter appears to the Court to be appropriate for resolution by mediation or neutral evaluation, the Court will endeavour to secure the consent of the parties to a referral of the proceedings for mediation or neutral evaluation.
(3) The Court may give directions requiring statements from parties including a timetable to enable parties to be prepared for mediation or neutral evaluation.
Joint statement
The Court may direct all parties to complete and sign a clear, concise, joint statement of the specific matters of fact and of law that are really in dispute and nominating the evidence specifically relevant to those matters. Each party is expected to bring to the final Status Hearing a draft of a suitable joint statement of the matters in dispute.
Settlement, offers and ADR
At the final Status Hearing, the Court explores prospects of settlement or of disposal of proceedings by ADR or referral to a registrar for a final conference with a view to inducing settlement.
General
Applications
15(1) Applications may be made:
(a) orally at the Status Hearing;
(b) on notice returnable at the Status Hearing; or
(c) by letter to the registrar requesting that the proceedings be given a Status Hearing and stipulating the reason, a copy of which is to be served in the same way as notice of a motion,
and will not be included in the general applications list for the Division.
(2) Urgent applications, and applications by consent, may be dealt with at any time by arrangement with the registrar.
16. Applications for summary disposal or for setting aside default judgment will be heard by the Possession List Judge.
Listing for hearing
17.(1)When ready for trial, proceedings will be entered in the Holding List (notwithstanding that they will remain in the List) with no priority over other proceedings unless an order for expedition is made.
(2) All applications for expedition should ordinarily be made in the first instance to the registrar.
Adjournment
18.(1)To ensure efficient use of Court time, proceedings fixed for trial will not normally be adjourned unless special circumstances have arisen which could not have been foreseen.
(2) An application for adjournment requires supporting affidavits.
(3) An application for adjournment will not usually be granted unless the party on whose behalf the application is made is present at the time the application is made or has sworn an affidavit verifying that that party is aware of the reasons for the application and identifying those reasons.
Inactive proceedings
19.(1)Claims for possession of land may be dismissed on the Court’s own motion if no defence to the claim is filed within 5 months of the claim being instituted.
(2) The Court will give the plaintiff notice that the claim (or where appropriate, the proceedings) will be dismissed unless, within a specified period, the plaintiff notifies the Court of its desire to show cause why an order for dismissal should not be made.
(3) The Court will:
(a) if the plaintiff gives notice in accordance subparagraph (2)list the proceedings for further consideration by the Possession List Judge; or
(b) otherwisedismiss the claim or the proceedings.
Summary disposal
20. An application for summary disposal, made after proceedings are entered in the Holding List, will be referred to the Possession List Judge and will not be entertained unless a party first satisfies the Court that exceptional circumstances exist that render it desirable that such an application be heard.
Default judgment
21. Entry in the List will not affect a party’s entitlement to enter default judgment.
Registrar
22. The Possession List Judge may arrange for registrars to carry out various functions in respect of the List.
22 December 1999
Chief Justice
