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Practice Note DC (Civil) No. 1
Case Management in the General List
This Practice Note is issued under sections 56 and 57 of the Civil Procedure
Act 2005 and is intended to facilitate the just, quick and cheap resolution of
the real issues in all proceedings before the Court. It applies to all matters in
the general list in the Sydney, Gosford and Newcastle registries commencing
6 April 2020. This Practice Note supersedes and replaces the previous
Practice Note DC (Civil) No. 1 which commenced on 6 October 2017. The
Standard Orders for Hearings annexed hereto at Schedule 1 supersede and
replace the Standard Orders for Hearings previously published on 6
December 2016.
1. Time Standard
1.1 The Court aims to have cases completed within 12 months of
commencement.
1.2 Parties should expect to be allocated a trial date within 12 months of
the commencement of proceedings. Parties to proceedings and the
legal practitioners representing them will be expected to assist the
Court to meet this time standard.
1.3 Counsel’s advice should be obtained early. Proceedings will not be
delayed by reason of a party’s failure to brief counsel at an early stage.
2. Commencing Proceedings
2.1 Before commencing proceedings or filing a defence, legal practitioners
must give their clients notice in writing about the requirements of this
Practice Note and of the Court’s insistence on compliance with its
orders. That notice must state that the Court may dismiss actions or
cross claims or strike out defences if orders are not complied with and
that the Court may make costs orders against parties who fail to
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comply with its orders. Practitioners should be mindful of the Standard
Orders for Hearings in the District Court, annexed at Schedule 1 of this
Practice Note.
2.2 Plaintiffs must not commence proceedings until they are ready to
comply with the requirements of the Uniform Civil Procedure Rules
(UCPR) and the Court’s practice notes for preparation and trial. This
means that, except in special circumstances, the plaintiff’s preparation
for trial must be well advanced before filing the statement of claim.
2.3 In actions under the Motor Accidents Compensation Act 1999, Motor
Accident Injuries Act 2017 or Part 2A of the Civil Liability Act 2002, if
attaining an impairment threshold is necessary to entitle a plaintiff to
claim damages of any particular type, proceedings should not be
commenced without evidence as to the relevant threshold.
2.4 Rules 15.12 and 15.13 provide that in personal injury cases and claims
under the Compensation to Relatives Act 1897 the plaintiff must file
and serve particulars and serve the supporting documentation on the
defendant or the defendant’s insurer or solicitor either with the
statement of claim or as soon as practicable after the service of the
statement of claim. In order to protect the plaintiff’s privacy, the Court
does not require the particulars to be served personally on the
defendant.
2.5 If it has not already done so, the defendant must commence its
preparation on receipt of the statement of claim. In a personal injury
case, the defendant must start preparing for trial based on the matters
alleged in the statement of claim and rule 15.12 or 15.13 particulars.
The defendant’s solicitor must arrange medical examinations on receipt
of these documents or receipt of any further notification of medical
examinations under rule 15.14.
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2.6 This Practice Note does not apply to a statement of claim in which a
liquidated amount is claimed until a defence is filed. When a defence
is filed, the Court will list the case for a pre-trial conference.
3. Proposed Consent Orders
3.1 The plaintiff must serve proposed consent orders for the preparation of
the case on the defendant with the statement of claim. The orders
must be drafted specifically for each case. They must include all steps
necessary to ensure that the case will be ready to be referred to
mediation and/or other form of alternative dispute resolution and listed
for trial at the status conference.
3.2 If the defendant does not agree with the proposed orders, or wants to
add additional steps, it must serve amended consent orders on the
plaintiff’s solicitor at least 7 days before the pre-trial conference.
3.3 The Court expects that, in most cases, the defendant will have
requested particulars of the statement of claim, which the plaintiff will
have supplied before the pre-trial conference. The defendant should
also have filed and served a defence and any cross claims.
3.4 In a personal injury case, the Court expects that the plaintiff will have
served complete rule 15.12 or 15.13 particulars and primary medical
reports, have qualified the experts who will prepare reports, including
any liability or economic loss expert and notified the defendant of the
expert appointments under rule 15.14. The Court expects that the
defendant will have arranged medical examinations and issued
subpoenas.
4. Representation
4.1 The Court requires proper representation at all appearances. If a party
is legally represented, a legal practitioner with adequate knowledge of
the case must represent that party whenever the case is listed before
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the Court. That legal practitioner must have sufficient instructions to
answer the Court’s questions and to enable the Court to make all
appropriate orders and directions.
4.2 Cases should not be mentioned by consent unless they are settled or
ready for a hearing date.
4.3 It is generally inappropriate for parties to be represented by agents or
clerks. If a party is represented by an agent, that agent should have
adequate instructions to deal with any questions asked by the Court.
4.4 If there is no proper representation, the case will either be stood down
or stood over to another day to allow proper representation. The
adjournment will be at the cost of the party not properly represented
and usually such costs will be payable by that party’s legal
representative.
5. Pre-Trial Conference
5.1 In all cases in the case managed list, (except defamation cases and
child care appeals) the Court will allocate a pre-trial conference date
when the statement of claim is filed. The plaintiff must notify the
defendant of the date and time of the pre-trial conference when the
statement of claim is served.
5.2 The pre-trial conference will be held two months after commencement
of proceedings.
5.3 No case may be entered into the Commercial, Intentional Torts or
Professional Negligence lists before the pre-trial conference.
5.4 An application may be made at the pre-trial conference for a case to be
placed in the Commercial, Intentional Torts or Professional Negligence
lists. Any application must be supported by an affidavit setting out the
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reasons for entering a case in that list. The Court will carefully
consider each application, even if both parties consent.
5.5 Cases will generally not be put into the Commercial, Intentional Torts
or Professional Negligence lists for case management unless they are
of a significant value and/or complexity so as to require detailed
management. Cases concerning a claim for less than $300,000 and
cases which do not require special case management will not usually
be placed into the Commercial, Intentional Torts or Professional
Negligence lists. The majority of cases will be managed in the General
List.
5.6 At the pre-trial conference, the Court will examine the orders proposed
by the parties and make all appropriate directions and orders to ensure
that the case is ready to be listed for hearing at the status conference.
Disputes between the parties will be resolved or a hearing date fixed
for a motion. The orders of the Court must be strictly complied with.
Failure to comply with those orders will be treated seriously and may
lead to adverse costs orders against the non-compliant party or where
appropriate, a legal practitioner.
5.7 The Court will give directions for the service of expert reports under
rule 31.19 at the pre-trial conference. The parties must be able to tell
the Court the precise nature of any expert evidence to be relied on and
the names of all experts so that appropriate directions can be made.
All reports must be served at least 28 days before the status
conference. For concurrent evidence, the parties must comply with
clauses 6-9 of the Standard Orders for Hearings.
5.8 In cases under the Motor Accidents Compensation Act 1999, Motor
Accident Injuries Act 2017 or Part 2A of the Civil Liability Act 2002, the
defendant should tell the plaintiff whether or not it agrees that the
relevant threshold has been reached at or before the pre-trial
conference. In a motor accident case, the proposed orders must
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provide for any referral to the Medical Assessment Service if the matter
has not yet been referred.
5.9 In an appropriate case, the Court will allocate a trial date at the pre-trial
conference or refer the parties to mediation.
6. Subpoenas
6.1 Parties must issue subpoenas as early as possible so that documents
can be produced and inspected and are available for the proper
preparation of the case, including submission to experts.
6.2 Parties should inspect all documents produced under subpoena and
serve any documents on which they rely before the status conference.
Parties must ensure that they follow up any non-production of
documents and file any necessary notices of motion before the status
conference.
7. Motions and Summonses
7.1 Interlocutory disputes between the parties should generally be resolved
by filing a notice of motion. Parties must file any motions as soon as
practicable. The parties should not wait until the next occasion when
the case is before the Court to consider seeking orders or filing a
motion.
7.2 A motion will be allocated a hearing date in the general motions list on
the first available Friday and the parties should be ready to argue the
motion on the first return date.
7.3 An Assistant Registrar will be available in court between 9.00 a.m. and
9.30 a.m. on Friday to deal with any consent orders and applications
for adjournments of motions. At 9.30 a.m. the Assistant Registrar will
call through the list and refer the notices of motion requiring hearing to
the Judicial Registrar or Motions Judge.
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7.4 The Judicial Registrar will allocate a hearing date to any notice of
motion which the parties anticipate will require more than two hours
hearing time.
7.5 Long motions will generally be case managed with the substantive
case and will be allocated a hearing date as soon as they are ready for
hearing.
7.6 All summonses (other than costs appeals or child care appeals) will be
listed before the Judicial Registrar for case management.
7.7 Where there are more than two parties to the proceedings and the
dispute to be resolved by way of notice of motion does not affect a
party the appearance of that party may be mentioned by consent.
7.8 Counsel are not required to robe for the hearing of motions and
summonses.
7.9 Affidavits in support of motions will be returned to the parties at the
conclusion of the hearing of the motion.
8. Status Conference
8.1 All cases, except for those which for good reason cannot be heard
within 12 months of commencement, will be required to take a hearing
date within a period between 8 and 11 months from commencement.
8.2 Cases in the General List will be required to take a hearing date at the
status conference even though there are still some matters to be
completed before the hearing. Appropriate orders will be made.
8.3 Matters allocated a hearing date will generally be referred for
alternative dispute resolution in accordance with clause 11 of this
Practice Note.
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8.4 When parties attend a status conference they must have instructions
about alternative dispute resolution under Part 4 of the Civil Procedure
Act 2005, details of the availability of their client, witnesses and
counsel together with an estimate of the length of the case to allow
directions to be made as to alternative dispute resolution or a hearing
date to be fixed.
8.5 Any cases, except those which have a genuine need for an additional
time for preparation, will be subject to an enquiry as to why they have
not been prepared for hearing, orders will be made for their further
preparation and costs orders will be made. In cases not ready to
proceed to a hearing, the party responsible may have to show cause
why the case or cross claim should not be dismissed or the defence
struck out.
8.6 Unless orders are made at the status conference, the Court will usually
not allow parties to rely on medical reports and experts’ reports served
later than 28 days before the status conference. Reports which are not
served in accordance with the Court’s orders are usually inadmissible
(see rule 31.28).
8.7 The Court will generally order that final particulars under rule 15.12 or
15.13 be filed and served before the status conference.
9. Estimates of the Length of Hearings
9.1 Any estimate given to the Court of the length of a hearing when the
matter is allocated a hearing date must be honest and reliable, having
been given earnest consideration by the parties. Parties must promptly
notify the Court if the estimate given for the hearing changes.
Substantial underestimations of the length of a hearing may lead to
costs orders against legal practitioners pursuant to ss 98 and 99 of the
Civil Procedure Act 2005.
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9.2 Parties must expect that cases that do not finish within the estimate
provided to the Court will continue until concluded.
10. Long Trial Dates
10.1 In cases estimated to take 5 days or more, the Court will allocate long
trial dates at the status conference or any subsequent directions
hearing.
10.2 When a long case is fixed for trial, the Court will make every effort to
ensure that it proceeds. For that reason, the Court will not adjourn long
cases unless there are exceptional circumstances.
10.3 Cases with an estimated trial time of 5 days or more will be listed
before the Court for case management directions. Each party should
be represented on that date by counsel briefed on the trial or the
solicitor with conduct of the case to enable all proper directions to be
made.
11. Alternative Dispute Resolution
11.1 The Court will refer all appropriate cases for alternative dispute
resolution. The parties must have instructions about suitability for
mediation or other alternative dispute resolution when they ask for a
hearing date. Parties should note that the Court’s power to order
mediation does not depend on the consent of the parties.
11.2 Where a case is estimated to take three or more days, the Court will
generally make a direction requiring the parties to participate in a
mediation unless the parties have made arrangements to do so.
11.3 In cases estimated to take less than three days, the Court will generally
order that the parties arrange and hold a settlement conference before
the hearing date. The parties and their legal representatives must
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attend that settlement conference. In the case of an insured party, an
officer with authority to resolve the case must attend.
12. Directions Hearings and Show Cause Hearings
12.1 At any stage, the Court may refer a case to a directions hearing before
the Civil List Judge or the Judicial Registrar. If a case is not ready for
hearing at the status conference it will be referred for directions. Any
order to provide statements or file affidavits must be strictly complied
with. Generally, the Court will not accept statements, affidavits or
submissions which have not been provided in accordance with an
order.
12.2 Cases in which parties have failed to comply with Court orders will be
referred to the Civil List Judge at an early time.
12.3 Where there has been non-compliance with Court orders, the Court
may list a case for:
(a) the plaintiff to show cause why the case should not be dismissed
for want of prosecution or;
(b) the defendant to show cause why the defence should not be struck
out and/or any cross claim dismissed for want of prosecution.
The party ordered to show cause should expect to pay the costs of the
show cause hearing.
12.4 At least 5 days before the show cause hearing, the legal practitioner for
the party in default (or the party, if self-represented) must file and serve
an affidavit setting out the reasons why he or she has not complied
with the Court’s orders and/or this Practice Note. In addition, any other
party who wishes the Court to consider any submissions must put
those submissions in writing, file and serve them at least 5 days before
the show cause hearing.
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13. Adjournments
13.1 If a hearing date is in jeopardy as a result of non-compliance with
orders or intervening events, either party must immediately approach
the Court by filing an affidavit in the registry. The registry will allocate a
directions hearing before the Civil List Judge. The affidavit and details
of the listing date and time must be served on all other parties
forthwith. If adjournment of the hearing date is later sought, the Court
will take any failure to approach the Court under this clause into
account when considering the adjournment application.
13.2 The Court will only grant adjournment applications where there are
very good reasons. The following will normally not be sufficient reasons
for adjournment:
(a) the unavailability of counsel or;
(b) the failure to comply with the Standard Orders for Hearings or any
other orders or directions made by the Court; or
(c) the failure to properly prepare the matter for hearing.
13.3 Parties who breach the Standard Orders for Hearings or any other
Court orders may be restricted in the evidence which they can rely on
at the hearing.
13.4 An application for adjournment of a trial or mediation is made by notice
of motion and supporting affidavit and must be made at the earliest
possible opportunity.
13.5 Where appropriate, the Court will make costs orders in a fixed sum
payable at a nominated time. The Court will, almost invariably, make
an order for costs against a party whose legal representative has failed
to ascertain the availability of the parties and their witnesses before
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taking a date for trial or mediation. The Court may call on legal
practitioners to show cause why they should not pay the costs of an
adjournment personally or reimburse their client for those costs
14. Conduct of Hearings
14.1 The Court considers that rule 58 of the Legal Profession Uniform
Conduct (Barristers) Rules 2015 applies to all legal practitioners who
appear before it. Accordingly, in conducting a hearing, legal
practitioners must:
(a) confine the case to identified issues which are genuinely in dispute;
(b) present the identified issues in dispute clearly and succinctly;
(c) limit evidence, including cross-examination, to that which is
reasonably necessary to advance and protect the client’s interests
which are at stake in the case; and
(d) occupy as short a time in court as is reasonably necessary to
advance and protect the client’s interests which are at stake in the
case.
15. Settled Matters
15.1 The following applies to all proceedings which have been allocated a
hearing date.
15.2 When such matters resolve, practitioners must immediately advise the
list office at ag-sdc-civil@justice.nsw.gov.au.
15.3 Until terms of settlement, consent orders or a notice of discontinuance
(the Settlement Document) is filed, the parties must attend when the
case is listed before the Court. Parties must file the Settlement
Document no later than the first day set for hearing (the Hearing Date).
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15.4 On the Hearing Date, matters that are settled pending the filing of the
Settlement Document will be adjourned for fourteen days.
15.5 On the Hearing Date, unless the Court otherwise orders, the following
orders will be made when a matter is settled but the Settlement
Document has not been filed:
(a) note the undertakings of the legal representatives of the parties
that the matter has settled;
(b) stand the matter over for mention to the Settled Matters List (14
days from the Hearing Date);
(c) if the Settlement Document is filed prior to the Settled Matters
List mention date, that listing will be vacated;
(d) should the parties not file the Settlement Document or fail to
appear at the Settled Matters List mention date, the proceedings
will be dismissed.
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Schedule 1 – Standard Orders For Hearings
STANDARD ORDERS FOR HEARINGS
CHRONOLOGY
1. The Plaintiff’s solicitor is to prepare a full chronology of relevant events, a copy
of which is to be served upon the other party/parties at least 3 clear days prior to
the hearing date.
2. The plaintiff is to read (or have read to them) the chronology before giving
evidence. The chronology should be tendered in the plaintiff’s case.
MEDICAL AND EXPERT REPORTS
3. Each party is to prepare a schedule of medical and expert reports and any
other documents which are to be tendered. A copy of the schedule is to be
served upon the other party/parties at least 3 days prior to the hearing date.
4. The schedule is to contain the dates of the reports and the dates of service.
5. Working copies of all medical reports, the chronology and all other documents
which any party proposes to tender should be available for the Trial Judge.
CONCURRENT EVIDENCE
6. Where more than one expert has been required to give oral evidence, if the
experts’ field of expertise is the same or substantially the same, arrangements
should be made by the parties for the experts to give their evidence concurrently.
7. If the parties disagree or are in doubt as to whether the case is suitable for
concurrent expert evidence, directions should be sought from the Court on that
matter at the earliest convenient time after such disagreement or doubt arises.
This order includes an application by any party for a hearing to be exempt from
the requirement for concurrent evidence.
8. Where experts are to give their evidence concurrently each expert should be
provided with the reports of the other expert/s, if not already in their possession,
at least 21 days before the commencement of the hearing.
9. The experts, before giving their oral evidence, should confer with the intent of
reducing the issues between them. Thereafter a joint report should be prepared
stating areas of agreement and continued disagreement. Where areas of
continued disagreement remain, reasons must be stated by each expert (or
group of experts holding a common opinion) for such continued disagreement.
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SCHEDULES OF DAMAGES AND ISSUES
10. Each party is to prepare a schedule of damages and a schedule of issues
which is to be served upon the other party/parties at least 3 days prior to the
hearing date. Copies of the schedules are to be provided to the Trial Judge
COURT TECHNOLOGY AND EVIDENCE
11. If a party intends to adduce electronic evidence, for example CCTV footage,
via CDs, DVDs or data files the party must consult the “Information Sheet –
Presentation of Electronic Evidence” located on the District Court website at:
http://www.districtcourt.justice.nsw.gov.au 28 days prior to the hearing to confirm
that the Court’s technology resources are capable of playing the evidence.
Arrangements for testing any equipment may be made on enquiry with the Court
Registry or contacting multimedia@justice.nsw.gov.au
.
If the electronic evidence is not in a form that is compatible with the Court’s
technology resources the evidence must either be converted to formats used by
the Court or the party must bring their own devices to play the evidence.
ADJOURNMENTS
12. All cases should be ready to proceed on the hearing date. Parties must
expect that cases that do not finish within the estimate provided to the Court will
continue until concluded. The parties must comply with clause 9 of Practice Note
DC (Civil) No.1 when providing estimates of the length of hearing. Parties should
prompt notify the Court if the estimate given changes.
13. Subject to sections 56-60 of the CPA, hearings will only be vacated or
adjourned where there are very good reasons. These must be demonstrated by
the party seeking the vacation or adjournment. The unavailability of counsel or a
failure to comply with court orders or to properly prepare the matter for hearing,
will normally not be sufficient reasons.
14. Any application for an adjournment must be made by way of Notice of Motion
with an affidavit in support and must be made at the earliest possible time.
COUNSEL
15. Counsel Appearing at the hearing are to be notified of these orders.
The Hon. Justice D.M. Price A.M.
Chief Judge
6 April 2020
