#8506 - Case Management - Litigation

Class 2 Case Management 1

2.20 Justice Delayed is Justice Denied: Jackamara v Krakouer –delay is bad 6

2.40 NSW COURT SYSTEM: AN OVERVIEW 7

2.90 Backlog Reduction 8

2.100 Case study of NSW SC CL division’s Case MANAGEMENT 8

2.120 CASE MANAGEMENT: efficiency v justice 9

2.140 CPA 2005 and UCPR 11

2.160 – HOW HAS PT 6 OF CPA AFFECTED CIVIL PROCEDURE? 13

2.190 DIRECTIONS 14

2.210 UCPR 17

2.240 Application of the CPA and UCPR 17

2.260 practice notes 18

AON 19

Readings:

* All Ch 2 + Aon Risk Services

Case Management – read all Chapter 2 (pages 25-57) +

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, [38]-[117].

[Optional – Boniface and Legg (2010) 39(2) Common Law World Review 157]

Summary

Exam format	Issue: Court is asked to make an order Consider: s 56 CPA and the overriding purpose of facilitating the quick just and cheap resolution of real issues in proceedings. Note how CPA has changed CL: s 56 - 8 CPA broadens the definition of justice to require court to consider not only justice between the individual parties but whether justice has been done to other litigants waiting for the courts resources: Metreski . This means that a ‘reasonable opportunity does not mean multiple repeated opportunities’: Phornpisutikul Chandra likely decided incorrectly given Thiele; Dennis v ABC Court can give directions as it thinks fit (inconsistent or not with rules of court) for the speedy determination of the real issues between the parties : s 61 CPA Failure to comply with directions?: s 61(3) CPA Pre-trial directions Dismiss: S 61(3)(a) – the Court can dismiss the proceedings. – this is the most extreme order because it denies you access to the court. (SEE ANSHUN ESTOPPEL NOTES ____________ FOR POSSIBLE ISSUES) Strike out or amend document filed: S 61(3)(d) – The Court can strike out or amend any document filed by the party – the Court can strike out an amendment included because the defendant didn’t seek leave to amend. Reject evidence: S 61(3)(e) – the Court can strike out disallow or reject any evidence that the party has adduced or seeks to adduce – this is a matter of natural justice at times, because the Court must allow parties to have time to respond to the other arguments. Costs: S 61(3)(f) – Court can direct party to pay whole or part of the costs of another party. – this is the most common ‘I order the costs be paid forthwith’ = pay immediately. Other costs: S 61(3)(g) it may make such other order or give such other direction as it considers appropriate. Eg. The court can order the solicitor pays. S 63 – procedural irregularity. See s 63(3) Directions for hearing: Regulate hearings: S 62(1) – Directions for hearing. S 62(1) is about regulating the hearing (eg the Court can say, I don’t want opening hearings, I’ve read your affidavit /submissions etc. The court can limit the hearing (eg within 2 weeks), so the case must fit within that. ‘Stopwatch hearings’ can be imposed or parties can agree. s 62(4) – do not detract from principle of fair hearing How to decide what order to give *eg in Andell:* P breached court directions, D sought to dimiss proceedings, but if P hadn’t breached case then case would have been finished in 9 months, that would have been exemplary, proportionate response . Furthermore the only injustice D are experiencing is unnecessary expense, no suggestion that prospective witnesses or documents wouldn’t be available – proportionate response was giving one last chance, with serious costs conseqeunces. Application for extension made with very stringest conditions. Amendments: s 64 CPA – Court can order at any stage of proceedings an amendment, but this is subject to s 58 CPA. go to notes – When deciding whether or not to direct an amendment under s 64 CPA the Court must exercise their discretion subject to s 58 which requires the Court to act in accordance with the dictates of justice, and consider s 56 and 57 eg in Andell: P** breached court directions, D sought to dimiss proceedings, but if P hadn’t breached case then case would have been finished in 9 months, that would have been exemplary, proportionate response . Furthermore the only injustice D are experiencing is unnecessary expense, no suggestion that prospective witnesses or documents wouldn’t be available – proportionate response was giving one last chance, with serious costs conseqeunces. Application for extension made with very stringest conditions. (For Amendments, Aon does not apply because AON decided ACT rules not NSW ) Adjournments: s 66 CPA (9.200) Adjournments [9.200] CPA s 66 Subject to rules of court the court may at any time and from time to time by order adjourn to a specified day any proceedings before it or any aspect of any such proceedings. Power to be exercised consistent with overriding purpose: Murtough v Betham Where P had received countless adjournments, did not appear at hearing, judge said that justice had to be balanced, costs order was insufficient and struck out claim: Betham Important for party seeking adjournment to explain why. In Aon no explanation for adjournment, court had to consider cost and delay and didn’t understand why it would be just: Party requesting adjournment may breach direction, UCPR and/or CPA Note: At JL Holdings – position used to be that amendment should be allowed if prejudice occasioned could be remedied through a costs order and the issue was fairly arguable. Technology [2.310] Directions hearing by Telephone by Common Law registry – where consent matters and matters where parties/legal representatives are located outside Sydney CBD. – Parties required to fax any proposed directions to CL case management registrar by 5pm on day before directions hearing over the phone. Directors/orders may be obtained by telephone are adjounrments, directions and allocation of hearing dates. Electronic Case Management (ECM) Online document lodgement/filing Online court/virtual courtroom for directions Koompahtoo v KLAC [2006]NSWSC 169 – first case Hill v W and F Lechner [2006] NSWSC 440 ECM court facilities overriding purpose Order defendant to pay the plaintiff’s costs of today’s hearing on an indemnity basis forthwith upon assessment or agreement.
Intro	Case management under ss 56-8 CPA Overriding purpose of CPA and of rules of court and in their application to civil proceedings is to facilitate the just quick and cheap resolution of the real issues in proceedings: s 56(1) CPA The court must give effect to the overriding purpose when exercising any power under the act or interpreting provisions of act/rule: s 56(2) CPA Party in civil proceedings under duty to assist court to further overriding purpose and to that effect to participate or comply with directors/orders of court : s 56(3) CPA. Solicitor/barrister must not by conduct cause client to breach duty: s 56(4) CPA Court may take into account breaches of duty in exercising a discretion with respect to costs: s 56(6) CPA What court must do when managing proceedings: When court manages proceedings in order to further s 56 CPA, they are to manage by having regard to: (a) the just determination of the proceedings, (b) the efficient disposal of the business of thecourt, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in thecourt, at a cost affordable by the respective parties: s 57 CPA When making an order or direction (for amendment, adjournment, any order of procedural nature, any direction under Div 2) court must act in accordance with dicates of justice under s 58(1) CPA. When determining what the Dictates of justice are under s 58(2): court must consider (a) s 56 and s 57 and may consider (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules ofcourt, the practice of thecourtor any direction of a procedural nature given in the proceedings,(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as thecourtconsiders relevant in the circumstances of the case.
	JL Holdings: in JL Holdings the HCA held that individual justice is the paramount consideration in determining an application for an amendment. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. To the extent that there should be any harm done to the other side from an indulgence, deal with this through a costs order. (Queensland v JL Holdings; cf Sali) Now

Exam format

Issue: Court is asked to make an order
Consider: s 56 CPA and the overriding purpose of facilitating the quick just and cheap resolution of real issues in proceedings.
Note how CPA has changed CL: s 56 - 8 CPA broadens the definition of justice to require court to consider not only justice between the individual parties but whether justice has been done to other litigants waiting for the courts resources: Metreski .
1. This means that a ‘reasonable opportunity does not mean multiple repeated opportunities’: Phornpisutikul
2. Chandra likely decided incorrectly given Thiele; Dennis v ABC
Court can give directions as it thinks fit (inconsistent or not with rules of court) for the speedy determination of the real issues between the parties : s 61 CPA

Failure to comply with directions?: s 61(3) CPA

Pre-trial directions

Dismiss: S 61(3)(a) – the Court can dismiss the proceedings. – this is the most extreme order because it denies you access to the court. (SEE ANSHUN ESTOPPEL NOTES ____________ FOR POSSIBLE ISSUES)
Strike out or amend document filed: S 61(3)(d) – The Court can strike out or amend any document filed by the party – the Court can strike out an amendment included because the defendant didn’t seek leave to amend.
Reject evidence: S 61(3)(e) – the Court can strike out disallow or reject any evidence that the party has adduced or seeks to adduce – this is a matter of natural justice at times, because the Court must allow parties to have time to respond to the other arguments.
Costs: S 61(3)(f) – Court can direct party to pay whole or part of the costs of another party. – this is the most common ‘I order the costs be paid forthwith’ = pay immediately.
Other costs: S 61(3)(g) it may make such other order or give such other direction as it considers appropriate. Eg. The court can order the solicitor pays.
S 63 – procedural irregularity. See s 63(3)

Directions for hearing:

Regulate hearings: S 62(1) – Directions for hearing. S 62(1) is about regulating the hearing (eg the Court can say, I don’t want opening hearings, I’ve read your affidavit /submissions etc. The court can limit the hearing (eg within 2 weeks), so the case must fit within that. ‘Stopwatch hearings’ can be imposed or parties can agree.
s 62(4) – do not detract from principle of fair hearing

How to decide what order to give

eg in Andell: P breached court directions, D sought to dimiss proceedings, but if P hadn’t breached case then case would have been finished in 9 months, that would have been exemplary, proportionate response . Furthermore the only injustice D are experiencing is unnecessary expense, no suggestion that prospective witnesses or documents wouldn’t be available – proportionate response was giving one last chance, with serious costs conseqeunces. Application for extension made with very stringest conditions.

Amendments: s 64 CPA – Court can order at any stage of proceedings an amendment, but this is subject to s 58 CPA. go to notes –

When deciding whether or not to direct an amendment under s 64 CPA the Court must exercise their discretion subject to s 58 which requires the Court to act in accordance with the dictates of justice, and consider s 56 and 57
eg in Andell: P breached court directions, D sought to dimiss proceedings, but if P hadn’t breached case then case would have been finished in 9 months, that would have been exemplary, proportionate response . Furthermore the only injustice D are experiencing is unnecessary expense, no suggestion that prospective witnesses or documents wouldn’t be available – proportionate response was giving one last chance, with serious costs conseqeunces. Application for extension made with very stringest conditions.
(For Amendments, Aon does not apply because AON decided ACT rules not NSW )

Adjournments: s 66 CPA (9.200)

Adjournments [9.200]

CPA s 66

Subject to rules of court the court may at any time and from time to time by order adjourn to a specified day any proceedings before it or any aspect of any such proceedings.
Power to be exercised consistent with overriding purpose: Murtough v Betham
1. Where P had received countless adjournments, did not appear at hearing, judge said that justice had to be balanced, costs order was insufficient and struck out claim: Betham
2. Important for party seeking adjournment to explain why. In Aon no explanation for adjournment, court had to consider cost and delay and didn’t understand why it would be just:
Party requesting adjournment may breach direction, UCPR and/or CPA

Note:

At JL Holdings – position used to be that amendment should be allowed if prejudice occasioned could be remedied through a costs order and the issue was fairly arguable.

Technology [2.310]

Directions hearing by Telephone by Common Law registry – where consent matters and matters where parties/legal representatives are located outside Sydney CBD. – Parties required to fax any proposed directions to CL case management registrar by 5pm on day before directions hearing over the phone. Directors/orders may be obtained by telephone are adjounrments, directions and allocation of hearing dates.
Electronic Case Management (ECM)
- Online document lodgement/filing
- Online court/virtual courtroom for directions
Koompahtoo v KLAC [2006]NSWSC 169 – first case
Hill v W and F Lechner [2006] NSWSC 440
- ECM court facilities overriding purpose
- Order defendant to pay the plaintiff’s costs of today’s hearing on an indemnity basis forthwith upon assessment or agreement.

Intro

Case management under ss 56-8 CPA

Overriding purpose of CPA and of rules of court and in their application to civil proceedings is to facilitate the just quick and cheap resolution of the real issues in proceedings: s 56(1) CPA
The court must give effect to the overriding purpose when exercising any power under the act or interpreting provisions of act/rule: s 56(2) CPA
Party in civil proceedings under duty to assist court to further overriding purpose and to that effect to participate or comply with directors/orders of court : s 56(3) CPA.
Solicitor/barrister must not by conduct cause client to breach duty: s 56(4) CPA
Court may take into account breaches of duty in exercising a discretion with respect to costs: s 56(6) CPA

What court must do when managing proceedings:

When court manages proceedings in order to further s 56 CPA, they are to manage by having regard to: (a) the just determination of the proceedings, (b) the efficient disposal of the business of thecourt, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in thecourt, at a cost affordable by the respective parties: s 57 CPA
When making an order or direction (for amendment, adjournment, any order of procedural nature, any direction under Div 2) court must act in accordance with dicates of justice under s 58(1) CPA. When determining what the Dictates of justice are under s 58(2): court must consider (a) s 56 and s 57 and may consider (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules ofcourt, the practice of thecourtor any direction of a procedural nature given in the proceedings,(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as thecourtconsiders relevant in the circumstances of the case.

JL Holdings: in JL Holdings the HCA held that individual justice is the paramount consideration in determining an application for an amendment. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. To the extent that there should be any harm done to the other side from an indulgence, deal with this through a costs order. (Queensland v JL Holdings; cf Sali)
Now

Readings

Cover:

2.10 Introduction

2.20 Justice delayed is justice denied

2.25 Case: Jackamara v Krakouer

2.40 NSW COURT SYSTEM: AN OVERVIEW

2.50 Local Court of NSW

2.60 District Court of NSW

2.70 Supreme Court of...

#8506 - Case Management - Litigation - Civil Procedure

About Oxbridge

More Litigation Civil Procedure Samples