Practice Note DC (Civil) No.

Case Management in the Commercial List

This practice note is issued under sections 56 and 57 of the Civil Procedure
Act.
1. Commencing Proceedings

1.1 A plaintiff must not commence proceedings until they are ready to
comply with the requirements of the Uniform Civil Procedure Rules and
this practice note for preparation and trial. This means that, except in
special circumstances, the plaintiff’s preparation for trial should be well
advanced before filing the statement of claim.

1.2 Before commencing an action or filing a defence, legal practitioners

must give their clients notice in writing about the requirements of this
practice note and 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 adhere to
timetables.

2. Entry into the Commercial List

2.1 Proceedings may be entered in the Commercial List by:

(a) The plaintiff or the defendant endorsing the Statement of Claim
or the Notice of Grounds of Defence “Commercial List”.
(b) The filing of a Consent Order to that effect.
(c) Order of the Court on Notice of Motion.
(d) Order of the Court on its own motion.

2.2 An action commenced on the basis of a common money count

pleading cannot be entered in the Commercial List without the leave of
the Court.

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2.3 An action in which the plaintiff’s claim, either liquidated or unliquidated,
is for less than $75,000 cannot be entered in the Commercial List
without the leave of the Court.

3 Removal from the Commercial List

3.1 (a) Upon an order being made removing proceedings from the List,
subject to sub-paragraph (b), this Practice Note shall not apply
to the proceedings from that date.
(b) The Court may direct that this Practice Note shall continue to
apply to the proceedings to the extent stated in the direction.
(c) The making of an order removing proceedings from the List shall
not affect any orders made or directions given prior to such
removal.

4 Pleadings

4.1 The Court’s expectation is that a plaintiff will plead the cause of action
sued upon with precision and clarity such that the defendant knows
from the beginning what the cause of action relied on is and the case
the defendant has to meet. Where possible, the Court’s aim is to
obviate the necessity for particulars being sought of the pleaded cause
of action.
4.2 Any defence filed should avoid formality, admit or deny the facts upon
which the plaintiff relies and should state the facts upon which the
defendant relies so that it will not be necessary for the plaintiff to seek
particulars.

4.3 All parties to the proceedings must ensure that the issues are clearly
spelt out in the pleadings to avoid new issues arising at the trial.

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

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5 Directions Hearings

5.1 The proceedings shall be before the Court for directions on the listing
date provided when the statement of claim or notice of grounds of
defence is filed or as the Court may otherwise direct.
5.2 Directions hearings usually will be appointed for 9.30 am on each Friday
during term. Proceedings may be listed at different times on each Friday and
the daily list should be consulted. Where a public holiday falls on a Friday the
Thursday preceding will usually be the day in that week for directions.

5.3 At the first directions hearing the Court expects:

(a) The defendant to inform the Court what, if any, the defence will be; and
whether or not cross claims are to be filed and, if so, what is the
substance of such cross claims.

(b) All parties should be in a position to inform the Court whether they
consider that the dispute is or will be suitable for reference out to a
referee for enquiry or for mediation or other alternative dispute
resolution procedure and whether they consent to a referral for such
purpose.

5.4 At the first directions hearing practitioners are expected to have in

legible written form a draft of the orders they will ask the court to make.
Such orders or directions will usually relate to:

(a) the filing of defences and cross claims, including defences

thereto;
(b) if essential, the provision of particulars;
(d) discovery with respect to specific categories of documents;
(e) the service of affidavits or statements of evidence;
(f) exchange of experts’ reports;
(g) a return date for subpoenas.

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5.5 Consistent with the Court’s view concerning the provision of particulars,
so, too, orders for general discovery and the administration of
interrogatories will be made only upon demonstrated need being
established in a particular case.

6 Attendance of Legal Representatives

6.1 Each party not appearing in person shall be represented at any

directions hearing by a barrister or a solicitor familiar with the subject
matter of the proceedings and with instructions sufficient to enable all
appropriate orders and directions to be made.

6.2 Practitioners should have communicated with each other prior to each
directions hearing with a view to agreement on directions being sought
from the Court.

7 Interlocutory Disputes

7.1 The Court will endeavour to deal with interlocutory disputes

expeditiously and to that end will not necessarily require the filing of a
notice of motion.

7.2 Before bringing an interlocutory dispute before the Court, the legal
representatives of the parties should confer with a view to resolving the
dispute or, at least, narrowing its compass. If convenient to the Court,
it may wish to resolve an interlocutory dispute at a directions hearing.
The parties should be prepared for such an eventuality. Where,
however, it is apparent that the issue is one of some complexity the
Court will require a formal notice of motion.

7.3 Where it will be necessary to resolve an interlocutory dispute by notice

of motion the Court should be informed of any party’s intention to file
such a notice of motion beforehand so that a timetable can be put in
place to ensure that the motion is ready to be heard on the allocated
date.

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8 Subpoenas

8.1 Subpoenas should be issued at an early time so that the gathering of

documents does not delay the progress of a case.

8.2 A return date for subpoenas can be given at a directions hearing,

preferably the first such hearing. Return dates for subpoenas are
generally appointed for 11am on each Monday before the Registrar.

9 Liberty to Apply

9.1 At any stage a case can be listed for directions before the Commercial
List Judge or the Judicial Registrar. The party seeking to relist a matter
shall do so by sending a written request to the Associate to the Judge
having the control of the Commercial List. Copies of such a request
are to be served on all other parties to the proceedings.

10 Listing for trial

10.1 A date for trial may be fixed prior to completion of interlocutory steps.
In this regard the parties should inform the Court at the earliest
possible date when they become aware that the case is a long matter,
that is, likely to be heard over a period exceeding 5 days.

10.2 The fixing of a date for trial will usually occur at a directions hearing.
Upon fixing a date for hearing the Court will normally direct that the
usual order for hearing set out in the Schedule shall apply, with or
without modification.

11 Experts

11.1 The Court will make orders in accordance with Part 31 Division 2 of the
Uniform Civil Procedure Rules 2005.

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11.2 In particular, the Court may direct, where appropriate, that the parties
comply with Rule 31.25 relating to conference between expert
witnesses.

12 Alternative Dispute Resoultion

12.1 All appropriate cases will be referred for mediation under Part 4 of the
Civil Procedure Act 2005 or arbitration under Part 5.

13 Adjournments

13.1 It is the responsibility of the parties’ legal advisers to ascertain the

availability of their clients and witnesses before a trial date is allocated.
Trial dates will not be vacated and cases will not be adjourned except
for a very good reason.

13.2 If there is to be an application for the vacation of a trial date or

adjournment it must be made by notice of motion with affidavit
evidence in support. Such application should be made to the Judge
who has the control of the Commercial List at the earliest possible
opportunity in advance of the day of trial.

13.3 If a case is not ready to proceed on the allocated trial date, the party in
default may be called upon to show cause why the statement of claim,
cross claim or defence should not be dismissed or struck out.

13.4 Where appropriate, costs orders will be made in a sum of money

payable within a specified time. Legal practitioners may be required to
show cause as to why they should not be required to pay personally
the amount required to satisfy the costs order.

The Hon. Justice R.O. Blanch A.M.

Chief Judge
9 August 2005

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 Schedule

Usual Order For Hearing

1. Where directions have been given for the service of experts’ reports,
and any party intends to rely on the evidence of an expert witness:

(a) at least 14 days before the date fixed for hearing each party
shall, by notice in writing to each other party, state whether the
party proposes to object to the whole or any part of any report
which has been served and the ground for the objection;

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

(c) if an expert is called as a witness, the party calling the expert

may not lead evidence from the expert the substance of which is
not included in a report already served in accordance with this
paragraph, without the leave of the Court;

(d) whether or not the report or any part of it is used in evidence by

the party calling the expert, if the expert is called as a witness,
any other party may use the report or any part of it in cross
examination of the expert unless the Court otherwise orders;
and

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

2. Other than in the case of experts’ reports, where directions have been
given for the service of affidavits or statements of evidence:

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

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 (b) at least 14 days before the date fixed for hearing each party
shall, by notice in writing to each other party, state whether that
party proposes to object to the whole or any part of any affidavit
or statement of evidence specifying the part or parts and the
grounds for the objections;

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

(d) if the affidavit is not read or the maker of a statement of

evidence is not called as a witness, no other party may put the
affidavit or statement in evidence without the leave of the Court;

(e) if an affidavit is read or the maker of a statement is called as a

witness, then save in relation to new matters which have arisen
in the course of the trial, the party serving the affidavit or
statement may not lead evidence from the deponent or the
maker of the statement, the substance of which is not included
in the affidavit or statement of evidence served, without the
leave of the Court;

(f) whether or not the affidavit or statement of evidence or any part

of it is used in evidence by the party calling the witness, if the
deponent or the maker of the statement of evidence is called as
a witness any other party may use the affidavit or statement of
evidence or any part of it in cross examination of the witness
unless the court otherwise orders;

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

3. (a) At least 14 days before the date fixed for hearing each party
shall, by notice in writing to each other party, specify what documents it

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 proposes to tender at the hearing and, in the event that there has not
been inspection, where the documents may be inspected.

(b) Within 7 working days thereafter, each party shall notify each
other party in writing:

(i) which of the specified documents may be tendered by

consent;
(ii) whether the authenticity of any of the remaining
documents, and if so which, is disputed; and
(iii) in so far as any document may not be tendered by
consent, the grounds for the objection to its tender.

(c) Each party other than the plaintiff shall, not later than 5.00 pm
on the fourth last working day prior to the date fixed for hearing,
deliver to the plaintiff’s solicitor two copies of all documents
intended to be tendered by such party at the hearing which have
not been specified in the plaintiff’s notice referred to in sub-
paragraph (a). The plaintiff shall prepare for the Court by
midday on the last working day prior to the date fixed for
hearing, duly paginated and indexed, two copies of the bundle of
the documents intended to be tendered at the hearing by any
party. The index of documents should identify documents the
tender of which is agreed and, in relation to the documents as to
which there is no agreement, which documents they are and
which party proposes tendering them.

4. (a) If any party intends to tender an original document that party

shall, at least 7 days before the date fixed for hearing, give notice of
that intention to all other parties.

(b) If any party requires another party to tender an original

document that party shall at the time of notification in
accordance with sub-paragraph 3(b) give notice of that
requirement to the other party.

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 (c) The party in possession of any document the subject of a notice
in accordance with sub-paragraph (a) or (b) shall make the
document available for inspection prior to the date of hearing at
the chambers of the barrister or office of the solicitor for that
party giving the notice.

5. Where an order has been made for the service of verified lists of
documents:

(a) until the conclusion of the hearing each party shall be under a
continuing obligation to disclose any document relevant to any
matter in issue with respect to the matters specified in the
original order;

(b) in the event that a party becomes aware that documents which
have been in its possession have not been included in its list of
documents, whether by reason of oversight or otherwise, that
party shall forthwith include, and clearly identify, particulars of
those additional documents in a supplementary list and serve an
affidavit verifying that list and explaining the reason for the
failure to disclose the documents in the original list.

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

(a) counsel for the plaintiff shall cause to be served on counsel for
the other parties a statement of agreed issues, a chronology of
relevant events and, where appropriate, a list of persons
relevant to the issues in dispute;

(b) in the event that there is no agreement, counsel for each of the
parties shall serve on counsel for the other parties a statement
of the issues which he or she perceives are likely to arise;

(c) counsel for each of the parties shall cause to be served on

counsel for the other parties a list of topics to be covered by

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 submissions, in the order in which they will be taken, and a list
of propositions of law relied upon together with the authorities to
be cited in support;

(d) counsel for any party other than the plaintiff may serve a
chronology of relevant events and a list of persons relevant to
the issues in dispute.

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

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