Date:

07/03/2001

PRACTICE NOTE No 120



COMMON LAW DIVISION

Differential Case Management List



Commencement of this Practice Note

1. This Practice Note replaces Practice Note 81, Practice Note 87 and Practice Note 88 and will apply from 1 September 2001.


Proceedings covered by Differential Case Management (“DCM”)

2. From 1 September 2001, DCM applies to the following proceedings in the Common Law Division:-

a) proceedings on foot at that date which were subject to DCM pursuant to Practice Note 81, Practice Note 87 or Practice Note 88;
b) other proceedings commenced, on or after that date, by statement of claim;
c) proceedings transferred, on or after that date, from another court or from another division of the Supreme Court;
d) any other proceedings the court directs it applies to;
but, subject to paragraph (d) of this clause, does not apply to:-
e) proceedings for defamation;
f) proceedings that include a claim for medical or legal professional negligence;
g) proceedings that include a claim for possession;
h) proceedings that are commenced in the Administrative Law List.


3. The court may, at any time after the commencement of proceedings:-

a) on the application of a party to proceedings, direct that DCM apply to those proceedings; or
b) of its own motion, direct that DCM apply to a particular proceeding or to all proceedings in a category specified in such direction.


Removal from the List

4.(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.


The DCM Document

5.(1) In relation to any party, the DCM 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 DCM document are explained in Appendix A.

(2) A plaintiff must file the DCM 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 94 of the Supreme Court Act (“default proceedings”).

(3) Where a defence or cross claim is filed in default proceedings the plaintiff must file the DCM document within one month after being served with an appointment for Status Conference and a defence and/or cross claim.

(4) Each other party must file the DCM document not later than one month before the date of the Status Conference.


Status Conferences

6.(1) Proceedings in the List will be managed by way of status conferences, the first of which will be appointed for approximately 3 months after proceedings are entered in the List.

(2) The date of the first status conference 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.

(3) Upon a defence or a 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 status conference.

(4) 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 status conference upon receipt of the transferred file. Parties with an address for service will be advised of the date by the registry.

(5) At a status conference, proceedings may be listed at a specified future date for a further conference.

(6) Status conferences for cases commenced at registries other than Sydney, or 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 conference. This written advice is to be marked to the attention of “The Status Conference Clerk” and must indicate the telephone number that the party or the relevant legal representative wants to be called at for the conference. This advice can be forwarded by facsimile transmission to (02) 9230 8234 or by email to supreme_court@agd.nsw.gov.au. Conferences involving parties to be contacted by telephone may have to be re-scheduled to a different time. The Sydney registry will contact those parties seeking a telephone conference, and the other parties if the conference has to be re-scheduled, to confirm the date and time of the conference. Parties seeking a telephone conference must ensure that the telephone number nominated is available from 10 minutes before the confirmed time of the conference. Telephone conferencing 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 status conference

7. The originating process and pleadings should be as brief and precise as the nature of the case allows.


8. It is expected that the parties’ legal representatives will have discussed the case before the initial status conference 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 conference; and
e) discussed the possibility of settling the dispute by Alternative Dispute Resolution (ADR).


Representation

9. Each party not appearing in person must be represented at the status conference 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 conference

10. A Registrar conducts a status conference.


11. All parties attend a status conference to conduct an in-depth review of the case. The orders and directions made at a status conference are designed to resolve the case as quickly as possible. The tasks at a status conference include, but are not limited to:

a) considering whether the proceedings would more appropriately be heard in the District Court and making a consent order accordingly;
b) 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;
c) considering whether there should be a separate trial of the liability issue held before trial of issues as to quantum;
d) 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;
e) considering whether Alternative Dispute Resolution is suitable;
f) establishing whether any party requires a trial by jury;
g) making consent orders for the completion at the earliest possible time of interlocutory steps such as discovery, interrogatories, views, medical examinations etc;
h) giving directions to ensure that the proceedings will be adequately prepared for the Final Conference within the time which the court fixes;
i) 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;
j) allocating a Final Conference on a day after the time for compliance of the last direction made.


12. The purpose of the status conference is to ensure the just, quick and cheap disposition of proceedings in accordance with the overriding purpose set out in Part 1 Rule 3 of the Supreme Court Rules. 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 14(1)(a).


Alternative Dispute Resolution

13.(1) At any status conference, the Court may consider whether the proceedings are suitable for ADR.

(2) ADR includes:-

a) mediation in accordance with the provision of Part 7B of the Supreme Court Act and Part 72C of the Supreme Court Rules or otherwise;
b) neutral evaluation in accordance with Part 7B of the Act and Part 72C of the Supreme Court Rules or otherwise;
c) arbitration pursuant to the provisions of s.76B of the Supreme Court Act and Part 72B of the Supreme Court Rules.

(3) If the matter appears to the Court to be appropriate for resolution by mediation, neutral evaluation or arbitration, the Court will refer the proceedings for mediation, neutral evaluation or arbitration.

(4) The Court may give directions requiring statements from parties including a timetable to enable parties to be prepared for mediation or neutral evaluation.

(5) 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 status conference, 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.

(6) Where the court refers proceedings for arbitration, the court may give directions for the conduct of the arbitration.


Variation of directions and timetable

14.(1) Case management directions given at a Status Conference 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;
b) by the court.

(2) 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 re-open the Status Conference.


Final Conference

15. A Final Conference is allocated on a day after the compliance date for the last direction made at the Status Conference. All parties are required to attend the Final Conference to see if the case can be disposed of or to set the case down for trial.


16. At a Final Conference, the Court again explores prospects of settlement or of disposal by proceedings by ADR and of referral for that purpose. The Final Conference is an appropriate time to make offers of compromise or revised offers of compromise under Part 22 of the Rules.


17. 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, and if appropriate an up to date schedule stipulating the components of damage referred to in paragraph 11(i). Each party is expected to bring to the Final Conference a draft of a suitable joint statement of the matters in dispute.


18. If it appears at a Final Conference that proceedings are not capable of being settled, the Court:

a) considers the state of preparation;
b) confirms compliance with directions;
c) may set short time limits for compliance, prior to call-up, with any directions not yet complied with and make orders in respect of non compliance;
d) gives directions for final preparation, including steps to shorten the trial.
e) gives directions concerning experts evidence, including directing conferences and preparation of statements of agreed and disputed issues;
f) will require a realistic estimate of the time required for the hearing.


Personal attendance

19.(1) Parties should attend a Final Conference in person.

(2) If:

a) the plaintiff or any other party does not attend a Final Conference—the Court makes such order as is appropriate, which may include, in addition to costs orders, orders striking out any pleading of any party in default, and orders for judgment accordingly;
b) a party is a company—this paragraph should be understood as requiring the attendance of an officer of the company with authority to give instructions in respect of the matter.
c) a party is insured or indemnifiedthis paragraph should be understood as requiring that an officer of the insurer or indemnifying agency, being a person with authority to give instructions to settle the matter, is available in person or accessible by telephone.



Listing for hearing

20. When ready for trial, proceedings will either be listed for hearing, or stood-over to a call-up for a hearing date to be allocated.






3 July 2001 Chief Justice


This Practice Note is available on the Supreme Court’s website: www.lawlink.nsw.gov.au/sc

APPENDIX A


Each party files the DCM document in order to provide the Court with information which will ensure that the Status Conference is efficient and effective.

A DCM 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.

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

A party is not required to make enquiries in an attempt to identify any person from whom any other party may be entitled to contribution or indemnity or any insurer by whom any other party may be insured in respect of the claim against it but is required to disclose such information of that sort as is in fact known to that party.

In addition to the matters specifically required by this Practice Note to be included in the DCM 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 Status Conference.

If a report or other document which is annexed to a party’s DCM 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 DCM document which is to be served on that party. That copy of the DCM document must however include a schedule listing the reports and documents which have been served and the date of service.


1. Plaintiff’s DCM document

1.1 The plaintiff’s DCM document is to contain:-

1.1.1 a statement by the plaintiff’s solicitor (or by the plaintiff, if in person) that he/she is aware of the need to serve the DCM document on each other party;

1.1.2 a list of contents including a list of any annexures;
1.1.3 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 upon which liability is likely to depend;
1.1.4 a description (name, place of residence, place of business and occupation) of any person from whom the plaintiff believes, upon his or her then state of knowledge, that the defendant may be entitled to contribution or indemnity if the plaintiff obtains judgment against the defendant; the plaintiff must include this information even if he or she currently does not intend to join this person as an additional defendant;
1.1.5 the identity of any insurer by whom the plaintiff knows or believes that the defendant is or may be entitled to indemnity in respect of his or her alleged liability to the plaintiff;

1.1.6 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 giving:-
(a) the title of the proceedings;
(b) the date and place of the proceedings;
(c) the name of the judicial officer or other person who conducted the proceedings;
1.1.7 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 DCM document is filed. The statement must mention the other proceedings even if they are not related to the event out of which the present proceedings arise, and must include:-
· the parties to the other proceedings;
· the court in which the other proceedings are on foot or were determined; and
· the file number of the other proceedings;
(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 DCM document is to be filed and which may be relevant to the assessment of damages;
1.1.8 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;
1.1.9 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;

1.2 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 DCM document:-

1.2.1 a copy of any police report concerning the event out of which the claim arises;
1.2.2 a copy of any relevant report concerning the accident or injury prepared by an officer of:-
(a) the Department of Industrial Relations Employment Training and Further Education;
(b) the Department of Mineral Resources; or
(c) the WorkCover Authority of New South Wales;
1.2.3 a statement setting out the best particulars that the plaintiff is then in a position to give of the damages claimed, and, where the claim is for damages for personal injury, copies of medical reports of all doctors who have treated the plaintiff up to that time;

1.2.4 a list of any relevant photographs, films or video tapes in the possession of the plaintiff and a statement of the arrangements proposed by the plaintiff for the viewing thereof by any other party.


2. Defendant’s DCM document

2.1 The defendant’s DCM document is to contain:-

2.1.1 a statement by the defendant’s solicitor (or by the defendant, if in person) that he/she is aware of the need to serve the DCM document on each other party;

2.1.2 a list of contents, including a list of any annexures;
2.1.3 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;
2.1.4 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;
2.1.5 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;

2.1.6 any information of the type referred to in Clause 1.1.5 of this Appendix that the defendant knows;

2.1.7 a statement of any reason for which it will be submitted that the action is not appropriate to be brought in the Supreme Court.

2.2 Where the plaintiff’s claim against the defendant is for damages for personal injuries, the defendant is to annex to the DCM document:-

2.2.1 a copy of any claim form or written report of the injury or accident the defendant or its insurer has received from the plaintiff;
2.2.2 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;

2.2.3 any documents referred to in Clauses 1.2.1 and 1.2.2 of this Appendix in the possession of the defendant that have not already been served by any other party;

2.2.4 copy 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
2.2.5 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 the Status Conference, 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 DCM 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.


3. Cross-claimant’s DCM document

3.1 A cross-claimant’s DCM document is to contain:-

3.1.1 a statement by the cross-claimant’s solicitor (or by the cross-claimant, if in person) that he/she is aware of the need to serve the DCM document on each other party;

3.1.2 a list of contents, including a list of any annexures;
3.1.3 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;

3.1.4 a description (name, place of residence, place of business and occupation) of any person from whom the cross-claimant believes that the cross-defendant may be entitled to contribution or indemnity if the cross-claimant gains judgment against the cross-defendant; the cross-claimant must include this information even if he or she currently does not intend to join this person as an additional cross-defendant;

3.1.5 the identity of any insurer by whom the cross-claimant knows or believes that the cross-defendant is or may be entitled to indemnity in respect of his or her alleged liability to the cross-claimant or the plaintiff;

3.1.6 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.
3.1.7 any information of the type referred to in Clause 1.1.5 of this Appendix that the cross-claimant knows;

3.1.8 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 the Status Conference, 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 DCM 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.


4. Cross-defendant’s DCM document

4.1 A cross-defendant’s DCM document is to contain:-

4.1.1 a statement by the cross-defendant’s solicitor (or by the cross-defendant, if in person) that he/she is aware of the need to serve the DCM document on each other party;

4.1.2 a list of contents, including a list of any annexures;
4.1.3 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;
4.1.4 a description (name, place of residence, place of business and occupation) of any person from whom the cross-defendant believes upon his or her then state of knowledge that the cross-defendant may be entitled to contribution or indemnity if the cross-claimant gains judgment against the cross-defendant; the cross-defendant must include this information even if he or she currently does not intend to join this person;

4.1.5 the identity of any insurer by whom the cross-defendant is or may be entitled to indemnity in respect of his or her alleged liability to the cross-claimant or the plaintiff;

4.1.6 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.
4.1.7 any information of the type referred to in Clause 1.1.5 of this Appendix that the cross-defendant knows;

4.1.8 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 Status Conference, 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 DCM 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.

4.2 Where the plaintiff’s claim is for damages for personal injuries:-

4.2.1 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;

4.2.2 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;


4.2.3 any documents referred to in Clauses 1.2.1 and 1.2.2 of this Appendix in the possession of the cross-defendant that have not already been served by any other party.