Nuts And Bolts For Judicial Officers
JUDICIAL COMMISSION OF NSW
THE NEW PROCEDURE
NUTS AND BOLTS FOR JUDICIAL OFFICERS
The Hon Mr Justice Hamilton
Of the Equity Division of the Supreme Court, Chair of the Attorney General’s Working Party on Civil Procedure
16 August 2005
ABBREVIATIONS AND EXPRESSIONS
APPLICATION OF NEW REGIME
SCHEME OF THIS PAPER
THE OLD AND THE NEW
INNOVATIONS OF THE CPA
THE COURSE OF AN ACTION: CASE MANAGEMENT
PREPARING AND FILING DOCUMENTS
PRELIMINARY DISCOVERY
COMMENCING PROCEEDINGS
APPEARANCE
PARTIES
CROSS CLAIMS
SERVICE
DISCONTINUANCE, DISMISSAL FOR WANT OF PROGRESS AND SUMMARY DISPOSAL OF PROCEEDINGS
PLEADINGS AND PARTICULARS
DEFAULT JUDGMENT, ADMISSIONS AND AMENDMENT
MOTIONS
RESOLUTION OF PROCEEDINGS WITHOUT HEARING
DISCOVERY AND INTERROGATORIES
MISCELLANEOUS INTERLOCUTORY PROCEDURES
SEPARATE DECISION OF QUESTIONS, TRIALS AND ASSESSMENTS
EVIDENCE
SUBPOENAS AND NOTICES TO PRODUCE
AFFIDAVITS
ORDERS
COSTS AND INTEREST
ENFORCEMENT
TRANSFERS BETWEEN COURTS
APPEALS
ABBREVIATIONS AND EXPRESSIONS
Court Acts Supreme Court Act 1970, District Court Act 1973, Local Courts Act 1982
CPA Civil Procedure Act 2005
DCA District Court Act 1973
DCR District Court Rules 1973
FCR Federal Court Rules 1979
LCA Local Courts Act 1982
LCCCA Local Courts (Civil Claims) Act 1970
LCCCR Local Courts (Civil Claims) Rules 1988
LCCPR Local Courts (Civil Procedure) Rules 2005
SCA Supreme Court Act 1970
SCR Supreme Court Rules 1970
UCPR Uniform Civil Procedure Rules 2005
APPLICATION OF NEW REGIME
The CPA and the UCPR are in force as of yesterday. They are now the procedural regime applicable to all civil proceedings in the Supreme, District and Local Courts and the Dust Diseases Tribunal. The only major exception is proceedings in the Small Claims Division of the Local Courts, where a much simplified procedure applies to claims under $10,000: UCPR Schedule 1. Schedule 6 cl 5(1) of the CPA provides that the CPA and the UCPR apply to all proceedings already commenced as well as to proceedings commenced after the Act and Rules came into force. Any anomaly that this might create is ameliorated in two ways:
(1) Anything begun before the commencement of the new legislation under a provision of the old legislation may be completed under the old legislation: CPA Schedule 6 cl 10. Thus, discovery under an order already made or execution under a writ of execution already issued will be completed under the old regime.
(2) A court may dispense with the requirements of the UCPR (wholly or partly) in respect of pending proceedings and make consequential orders: Schedule 6 cl 6(2). This no doubt includes an order that the old rules apply, if this is appropriate.
SCHEME OF THIS PAPER
The content of this paper is governed by the fact that it is delivered in the first week of the new regime, as we all come to apply it on a daily basis to proceedings before us. Particularly bearing in mind the constraints of time, I do not propose to traverse the whole of the legislation. In this paper, I shall say a few things about the relations between the old and the new Rules. I shall then point out a few of the innovations of the CPA. But the bulk of the paper will be devoted to a progress through a set of proceedings, as they come before the courts, concentrating on the provisions which will be dealt with by judicial officers in court in their daily lives. In the course of this, I shall refer to relevant provisions of both the CPA and the UCPR.
A more comprehensive account is given in the paper by Jenny Atkinson and Stephen Olischlager, “An Introduction to Civil Procedure Act 2005 Uniform Civil Procedure Rules
2005” August 2005 available at: http://www.lawlink.nsw.gov.au/lawlink/spu/ll_ucpr.nsf/pages/ucpr_publications
Concerning the context in which the new regime has been introduced, see my short article “The New South Wales Uniform Civil Procedure Rules Gradualism or Revolution?” in the Judicial Officers’ Bulletin, Vol 17 No 7, August 2005 and the paper by G C Lindsay SC,
“Dynamics of the Civil Procedure Regime” available at: http://www.thomson.com.au/NSWUCP/analysis.asp
THE OLD AND THE NEW
Not all of the old legislation has been repealed. In the Local Courts, the LCCCA and the LCCCR have been totally repealed, but a few necessary provisions have been removed into the LCA and the LCCPR respectively. In the SCA and the DCA, constitutive and administrative provisions remain and will remain, but what can generally be characterised as procedural provisions, which have been removed to the CPA, have been repealed. The Court Acts will continue indefinitely in their present form. In the DCR, some rules remain. In the SCR, a larger number of rules remain. Some of these relate to criminal proceedings. More relate to the Court of Appeal and to specialist lists and jurisdictions. Criminal rules have no place in the UCPR. But the Working Party, in a second project, will in the next twelve months work to bring the remaining civil rules into the UCPR, except for such nationally uniform rules as the Corporations Rules and the Admiralty Rules. The Working Party will also attend to formulating any amendments thought to be necessary to the CPA and the UCPR as they settle down in practice. Any suggestions will be welcome and should be directed to Jenny Atkinson, who will continue to provide secretariat support to the Working Party and who has also been appointed as secretary to the Uniform Rules Committee constituted under the CPA: see s 8. Also, anyone who wishes to discuss any provisions with me is welcome to do so.
In general terms, where there is a conflict between the UCPR and any local rules, the UCPR will prevail: s 11. Some deliberately retained local rules will, however, prevail over the UCPR: r 1.7, Schedule 2.
The UCPR generally maintain the order of the old rules. There are two reasons for this. The first is that this order has a logic for users, in that it follows the course of an action. The second is the preservation of the familiar, to aid the transition. The main changes are the grouping of certain related subjects. For instance, in Part 7, Parties to proceedings, are pulled together rules relating to parties of particular types, eg, persons sued under business names. In Part 20, Resolution of proceedings without hearing, are gathered rules relating to various modes of the early resolution of proceedings without trial by the court, including mediation, statutory arbitration and reference to a referee.
The CPA is drawn so that the existing powers of the Supreme Court are not limited in any way, fully preserving its inherent jurisdiction. Correspondingly, it is intended that the jurisdiction of the other courts not be expanded, to prevent arguments arising from the application in those courts of rules appropriate to jurisdiction which they do not have, eg, an argument, when the probate rules are brought into the UCPR, that Local Courts have probate jurisdiction. See s 11.
Existing expressions and language have been retained so far as possible to preserve existing authority as to interpretation and preclude unnecessary arguments as to meaning. However, changes have been necessitated by changes in drafting style since the promulgation of the superseded legislation. In the Second Reading Speech, the Attorney General said (Hansard, Legislative Assembly, 6 April 2005, p15116):
“The bill and rules largely reflect existing provisions and continue to use phrases that have a settled legal meaning. Where there is change, much of it can be attributed to the fact that drafting styles have changed over the past 30 years. Parties should not be arguing that a rule has changed because a modern drafting style has been adopted if the substance of the rule remains the same. This approach is designed to minimise unnecessary litigation about the meaning of a clause or rule.”
INNOVATIONS OF THE CPA
Definition of civil proceedings s 3
In s 3(1), “civil proceedings” are defined as any proceedings other than criminal proceedings. “Criminal proceedings” are defined as “proceedings against a person for an offence (whether summary or indictable)”. They are specifically defined to include proceedings relating to committal and sentence and on appeal, which probably are criminal proceedings on any reckoning. They also include proceedings relating to bail, which may not be in their nature criminal, but civil, proceedings. This is particularly so where bail is applied for in separate proceedings, as in an application to the Supreme Court for bail, where bail has been refused in a lower court. This definition is intended to ensure that there are not any proceedings which do not fall within the definition of either civil proceedings or criminal proceedings for the purposes of the CPA. There are further exclusions from the UCPR of proceedings analogous or related to criminal proceedings in r 1.6(b).
Set-off s 21
The concept of set-off was either deliberately or accidentally abolished by the repeal without replacement of the 18th century Statutes of Set-off by the Imperial Acts Application Act 1969. The NSW Law Reform Commission has pointed to the deficiencies which this created and recommended replacement legislation in its Report on Set-off, Report No 94 (February 2000). This is now effected in s 21, which is, generally, in the terms recommended by the Law Reform Commission. Note the special transitional provision relating to s 21 in CPA Schedule 6 cl 6.
Reading affidavits in advance of hearing s 69
A common practice has grown up of judicial officers reading affidavits to prepare themselves ahead of hearing applications or, indeed, trials. This helps shorten hearings. To foreclose any suggestion that this practice is inappropriate, s 69 provides that proceedings are not to be challenged by reason of a judge or magistrate engaging in this practice.
Power to determine validity of settlements s 73
Traditionally, if there was a dispute as to whether an agreement to settle or compromise proceedings was binding, that question could not be determined in those proceedings, but only in separate proceedings brought for that purpose. There has been some suggestion of recent years that the validity of the compromise could be determined by the court on a motion brought in the proceedings alleged to have been settled, but the correctness of this has remained the subject of doubt: Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510; Phillips v Walsh (1990) 20 NSWLR 206. That doubt is removed by the provisions of s 73.
Power to determine whether person is under legal incapacity for purpose of approving settlement s 76
The Damages (Infants and Persons of Unsound Mind) Act 1929 as to approval of settlements is repealed and is replaced in Part 6 Div 4 of the CPA. A novel provision is that the court to which application is made for approval of a settlement may make a finding that a person is a person under legal incapacity on the basis of evidence given in those proceedings, so that a settlement may be approved promptly, without the matter being referred to, say, the Supreme Court exercising protective jurisdiction for a finding to be made. Section 76 provides, however, that such a finding made by the approving court has effect only in the proceedings in which it is made.
Protection against self-incrimination in relation to interlocutory orders s 87
This deals with a problem that arises in relation to Mareva relief and Anton Piller orders. There is no doubt that courts with power to grant such relief have power to order that defendants disclose information concerning their disposition of property and its whereabouts. This, however, may breach their privilege against self-incrimination. A practice was developed whereby this situation was sought to be dealt with by a mechanism employing the certificate provisions contained in s 128 of the Evidence Act 1995 by Judges in the Equity Division of the Supreme Court: see the judgment of Young J (as his Honour then was) in HPM Industries Pty Ltd v Graham NSWSC 17 July 1996 unreported; my judgment in National Australia Bank Ltd v Rusu NSWSC 6 April 1998 unreported; and the judgment of Austin J in Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538. This procedure was, not surprisingly, held inappropriate by the Court of Appeal in Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436. This left a situation where attempts to use this jurisdiction to obtain information (often in situations of serious fraud) could be met without redress by a claim of privilege. CPA s 87 attempts to remedy this situation by the creation of a certificate process parallel to s 128 of the Evidence Act 1995 for use in these circumstances.
Fresh trial ss 88 and 89
Section 88 addresses the situation where a judicial officer through death, resignation or incapacity is unable to continue a trial or give judgment in proceedings, which that judicial officer has commenced to hear. Sometimes this has occurred in circumstances where evidence has been taken over a period of months. Previously, if the parties agreed, the new trial judge could advert to the evidence already taken. But one party could, by disagreement, create the necessity to take all the evidence afresh. Section 88 provides that, in the circumstances mentioned, the head of jurisdiction may appoint a new trial judge or magistrate. Both where this occurs, and also where an appellate court has made an order for a new trial generally and where a judicial officer has discharged himself or herself from a trial without having given judgment, the court may, under s 89, order which evidence formerly taken may be used without need for the recall of witnesses and which of the witnesses are to be recalled for examination or cross examination.
THE COURSE OF AN ACTION: CASE MANAGEMENT
In turning to the course of an action under the new regime, I shall deal first with the provisions relating to case management. These must be viewed against the rise of case management in the courts over the last 30 years. This has occurred largely without major amendment to legislation or rules. What amendments there have been have been piecemeal and fragmentary. Yet virtually all civil proceedings in all courts are now case managed to some degree and in some form.
Because of their importance, provisions relating to case management are now elevated to a leading position in the rules: Part 2. However, the governing provisions relating to case management are now embodied, not in the UCPR, but in the CPA. This is both to mark their central importance in modern procedure and to ensure that no argument can be raised that a case management procedure or sanction is beyond rule making power. The pinnacle provision is the overriding purpose provision of s 56, previously contained in SCR Part 1 r 3. I must admit that I was something of a sceptic (although not an opponent) when Part 1 r 3 was introduced in 2000, avowedly as a culture changing measure. I have since become a devotee. I have found the ability to refer to the rule in court very useful in dealing with recalcitrant parties. I have also found it a useful way of reminding practitioners of their duties in this regard, without the appearance of personal criticism of one side’s representatives. I should be interested in the experience of other judicial officers in relation to this rule.
CPA s 56 retains the NSW “just, quick and cheap” formula: cf UK Civil Procedure Rules 1998 r 1.1(1) and Queensland Uniform Civil Procedure Rules 1999 r 5(1). CPA s 56 leads Div 1, Guiding principles, in Part 6, Case management and interlocutory matters. The following sections are s 57, Objects of case management, s 58, Court to follow dictates of justice, s 59, Elimination of delay and s 60, Proportionality of costs. Sections 57 and 58 are congruent with “just”, s 59 with “quick” and s 60 with “cheap”. These provisions are largely new (although s 59 echoes WA Supreme Court Rules Order 1 r 4A). It is to be noted that s 57 and s 58(1) and (2)(a) are mandatory, whereas s 58(2)(b) is discretionary. The latter is to avoid too long a checklist of mandatory matters, which may encourage applications for review of discretionary decisions based on House v The King (1936) 55 CLR 499.
Section 58 attempts to deal with a problem which is perceived to arise from the decision of the High Court in The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. It has been argued to be the effect of the majority judgment in that case that the dictates of justice (which undoubtedly control and will continue to control the situation: CPA s 58(1)) are limited to the dictates of justice only as between the parties to the proceedings in which the application is made. This section validates adversion to wider considerations. It will be interesting to see how the section works in practice.
Division 2 of Part 6 deals with the powers of the court to give directions. Sections 61 to 63 largely contain provisions gathered from the Court Acts and superseded rules. They do not differ largely from their predecessors. For instance, in s 62, the only addition to the provisions of SCR Part 34 r 6AA is the power to make a direction limiting the overall time that may be taken by the hearing: s 62(3)(g). This would facilitate the introduction of the “stop watch” trial, to any extent that anyone feels like giving it a go. Even without that, the rule may operate as a threat to those who are otherwise unduly protracting a trial (which I have found to be a use for the limitation of cross examination rule, which already exists). Section 61(3) gives statutory authority for draconian sanctions for disobedience of directions.
Division 3, Other powers of court, provides for the powers of amendment, adjournment and stay. The power to amend is now statutory: CPA s 64. Section 65 grapples with the problem of amendment of originating process after expiry of a limitation period. These provisions have been moved from the rules because of doubts as to the sufficiency of rule making power, especially bearing in mind the effect of the provision in s 65 on the operation of the Limitation Act 1969: see Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388 (currently on appeal to the High Court). Any further comments on s 65 would be particularly welcome, as it will be reviewed during the ongoing Working Party process.
It is to be noted that s 67, relating to stays, does not include a power to stay indefinitely, but only permanently or to a specified day. This is to avoid proceedings, which are not ongoing but have not been formally terminated, from falling into a “black hole”. The intention is that, if proceedings are to be stayed till, say, the provision of security for costs, the period estimated to be necessary should be ascertained and the proceedings stood over for the relevant period. They will then be back in court. A further finite stay can be applied for, if necessary. If it is plain that security will not be given, the proceedings can be dismissed. Earlier provision of the security can be dealt with by a liberty to restore at an earlier time. The Supreme Court, because it is not deprived of any jurisdiction, will retain an inherent power to stay for an indefinite time. But it is hoped that Supreme Court Judges will, except in a very exceptional case, proceed under the statutory power in the manner outlined above.
PREPARING AND FILING DOCUMENTS
Not a great deal need be said concerning this: see Part 4. In Local Courts, commercial agents, real estate agents, strata managing agents and on-site residential property managers may sign a limited number of documents: see r 4.4(3). Defences and cross claims must now be in separate documents, to facilitate electronic handling: r 4.8. Part 3 deals with electronic case management and should be read in conjunction with the Electronic Transactions Act 2000.
PRELIMINARY DISCOVERY
This is provided for in Part 5. It generally follows the form of FCR Order 15A rather than SCR Part 3 or DCR Part 4. This is because the FCR are wider. What is available now that was not available earlier is discovery from a prospective defendant, not only as to the identity of the defendant, but as to whether or not a cause of action exists: r 5.3. Also, the Part extends to third party discovery: r 5.4. The basic rule is now also wider than the FCR, in that it extends to the whereabouts, as well as the identity, of the prospective defendant: r 5.2.
COMMENCING PROCEEDINGS
There are now only two forms of originating process, by which all proceedings under the UCPR must be commenced. These are the statement of claim and the summons: r 6.2(1). The separate forms of ordinary statement of claim and statement of liquidated claim in the District Court and Local Courts are abolished. Even appeals to the court are now to be commenced by summons, praying for the setting aside of the order or decision appealed from and the making of the order sought in lieu. Anyone to whom this at first blush seems strange needs to be reminded that this system has worked in the Supreme Court for 30 years without difficulty.
There is assistance in rr 6.3 and 6.4 as to when a statement of claim and when a summons is appropriate. In general terms, a statement of claim is appropriate where there are contested issues of fact and a summons where there are not. However, some proceedings, where the issues are comparatively simple, are always tried on summons, even though there is factual contest, eg, family provision proceedings.
Selection of the wrong originating process is never fatal. Rules 6.5 and 6.6 govern the situation where the wrong originating process is chosen. In the Equity Division of the Supreme Court, it is routine for proceedings to be commenced by summons to deal with urgent aspects and for the proceedings then to be ordered to continue on pleadings: r 6.6(2). In general terms, no step may be taken in proceedings before the filing of originating process, but the practice of the Equity Division in relation to ex parte applications in urgent matters is continued: rr 6.1(2)(c) and 25.2.
Generally an originating process need not claim costs. But it must claim exemplary or aggravated damages and an order for interest up to judgment, when these are sought: r 6.12. An amount for unliquidated damages must not be claimed in a pleading. In the District Court and the Local Courts the upper limit of damages will be determined by their jurisdictional limits. There is an exception in relation to claims for damage to motor vehicles and other property. See r 14.13.
The formerly available summons without a return day had already been abolished in the Supreme Court. All summonses under the UCPR must contain a return day. This is to avoid a “black hole” and also to ensure, in these days of case management, that summons cases are brought promptly under case management.
APPEARANCE
The appearance is retained and extended to all courts, because it is necessary in summons matters and operates as acknowledgement of service and submission to jurisdiction, as well as recording a defendant’s address for service. However, to save hundreds of thousands of pieces of paper annually, an appearance is taken to have been entered upon the filing of a defence: r 6.9(2). Default judgment may not now be entered in the Supreme Court for want of an appearance, but only for want of a defence: r 16.2(1).
The submitting appearance is retained and extended to all courts. This facilitates an early indication that a defendant does not wish to contest proceedings except to the extent that costs are claimed against that defendant: r 6.11.
PARTIES
These are dealt with in Parts 6 and 7. Divisions 5 to 7 of Part 6 carry over from the SCR the rules as to joinder of causes of action and joinder and removal of parties. Part 7 gathers together (in many cases from a later place in the former rules) rules relating to particular types of parties, eg, corporations, legal representatives of estates, persons under legal incapacity, business names and relators.
A natural person may carry on proceedings in any court by a solicitor or in person: r 7.1(1). A litigant in person may not issue a subpoena except by leave of the court: r 7.3. As to corporations, different provisions are made in different courts. A Corporations Act company may carry on proceedings in any court by a solicitor or by a director. In the Supreme Court, in proceedings commenced by a director, the director must also be a plaintiff. In a Local Court, proceedings by a company may be commenced by a duly authorised officer or employee. Certain ancillary proceedings may be commenced in a Local Court by a commercial agent or sub-agent, a real estate agent, strata managing agent or on-site residential property manager. See generally r 7.1.
CROSS CLAIMS
Some introductory remarks are needed. CPA s 22 corresponds with the former SCA s 78. All claims by a defendant may be and are to be made by cross claim. Formerly, the expression “cross claim” was used to denote different things. Sometimes it denoted the claim made, as defined in the section. Sometimes it denoted the piece of paper by which the claim was made. And, in the latter case, it denoted indifferently two types of piece of paper, namely, a cross claim in pleaded form, corresponding with a statement of claim, and a cross claim not in pleaded form, corresponding with a summons: r 9.1. An attempt has been made to remove this ambiguity by using “cross claim” to refer only to the claim and describing the pieces of paper respectively as a statement of cross claim and a cross summons. It has already been noted that a cross claim may not now be included in the same document as a defence: r 4.8.
A consequence is that the procedure by third party notice provided for in DCR Part 21 and LCCCR Part 19 is abolished. All claims for contribution and indemnity in all courts must now be made by way of cross claim: see s 22 and r 9.1.
SERVICE
There is little difference from the present regime. Parts 10 and 11 of the UCPR deal with the subject matter. Rule 10.1 requires service of all documents filed on all active parties. An “active party” is defined in the Dictionary as a party who has an address for service other than a party against whom no further claim in the proceedings subsists. This rule imposes a general obligation, so that a requirement does not have to be made elsewhere in the rules for service of particular documents (cf the provisions as to whose motion an order may be made on and the power to impose terms and conditions on any order: see CPA s 86). Rule 10.2 makes a general requirement of service in respect of affidavits, which, mostly, are now not to be filed at the time of service: r 35.9. Service is generally the responsibility of the party filing, but a Local Court may serve an originating process and must serve a defence: r 10.1(2).
Service of originating process must be personal in the Supreme Court and the District Court. In a Local Court, originating process may be served personally; it may be left, addressed to the defendant, at the defendant’s residential or business address with a person apparently over the age of 16 years; or it may be served by post by the court: r 10.20(2).
A subpoena for production in the District Court or the Local Court may be served in any of the manners just recorded for the service of Local Court originating process: r 10.20(4). This is a relaxation of the nationally uniform subpoena rules, which are contained in Part 33. But this system has worked successfully in the District Court and Local Courts for many years and the insistence on personal service of documentary subpoenas was thought to be too onerous. However, personal service of subpoenas to give evidence is required in all courts: r 33.5.
The regime will continue under which Supreme Court process may be served outside New South Wales but in Australia under the rules as well as under the Service and Execution of Process Act 1992 (Cth): r 10.3. Part 11 deals with service of Supreme Court process outside Australia.
DISCONTINUANCE, DISMISSAL FOR WANT OF PROGRESS AND SUMMARY DISPOSAL OF PROCEEDINGS
The first two subjects are dealt with in Part 12 of the UCPR. Discontinuance is by consent or leave, except in respect of parties who have not been served: rr 12.1 and 12.2. As to proceedings in which the claim or the defence is conducted with lack of due despatch, the court has a general power to dismiss the claim or to strike out the defence: r 12.7. Additionally, the differing regimes, whereby a registrar may dismiss proceedings that are dormant, are carried over in slightly different forms in the Supreme Court and the lower courts. The differences are that, in the Supreme Court, the period of dormancy is six months and, in the other courts, nine months. In the Supreme Court, the registrar must give notice of the intention to dismiss, but in the other courts need not do so. See rr 12.8 and 12.9.
Part 13 of the SCR as to summary disposal is carried virtually without change into Part 13 of the UCPR, with the intention that it apply in all courts.
PLEADINGS AND PARTICULARS
The pleading rules have been carried over from superseded rules into Part 14 of the UCPR with little change. The system is familiar and appears to work satisfactorily in practice.
Verification of pleadings is generally required in the Supreme Court and the District Court, except in proceedings for defamation, malicious prosecution, false imprisonment, trespass to the person, or death or personal injury: rr 14.22 and 14.23. It was decided not to require verification in Local Courts, as an unnecessary complication and expense. One change that has been made is that the concept of close of pleadings contained in SCR Part 15 r 22 has been abolished, as have also provisions for setting down for trial. These related provisions under older systems arose from the fact that cases were not managed, and provided for the creation of a list out of which cases were in turn administratively fixed for trial. They are otiose, now that cases are fixed for hearing through the process of case management. The pleading rules are (and always were) adequate to define when pleadings were complete, by the provisions as to joinder of issue: UCPR r14.27.
The provision from SCR Part 15 r 26 as to striking out pleadings which are inadequate, embarrassing or an abuse of process is carried into UCPR r 14.28, to be used along with the summary disposal provisions of Part 13.
As to particulars, the general requirement is in r 15.1 and other rules are carried over from the SCR: see rr 15.3 – 15.10. Scott Schedules are specifically provided for in r 15.2, modelled on previous rules in the DCR and LCCCR. Although always used in the Supreme Court, Scott Schedules were not previously provided for in the SCR. A detailed regime for particulars in personal injury and death cases has been carried over into Part 15 Div 2 from the DCR, since it is in the District Court that most of such litigation is now conducted.
DEFAULT JUDGMENT, ADMISSIONS AND AMENDMENT
The pre-existing regimes as to the administrative entry of default judgment have essentially been carried over from pre-existing rules into Part 16 of the UCPR. In the Supreme Court, as already noted, default of defence remains a relevant event of default, but default of appearance does not. Pre-existing regimes as to Admissions are essentially carried over into Part 17 of the UCPR.
It has already been noted that the power to amend is now statutory: CPA s 64. The provisions of the UCPR relating to amendment are contained in Part 19. There was a view that there should no longer be any amendment without court order, in accordance with modern case management principles. However, the possibility of one amendment without leave has been retained because of its frequent use in Local Courts to correct parties or other elementary errors. If these had to be dealt with in court, it would involve an unnecessary waste of time. See rr 19.1 and 19.2.
MOTIONS
Under the UCPR, all interlocutory or other applications to the court are to be made by motion unless the rules provide otherwise: r 18.1. In fact, there are few provisions to the contrary. The policy is to have only one method of initiating an application. This even applies to such administrative matters as the application for a writ of execution, which formerly, in the Supreme Court for instance, was initiated by producing a form of the writ to the registrar and filing a copy of the writ: SCR Part 34 r 7. The reason for requiring even administrative applications such as this to be initiated by motion is the requirements of the CourtLink computer system, which is to be introduced. It is difficult for a computer system to recognise varied ways of initiating steps in the proceedings, even where that recognition was simple and easy, when pieces of paper were presented to a human clerk. The complication produced by the change is that there will be many more instances in which notices of motion will be filed and, particularly, many more instances of applications initiated by notice of motion, which will not be dealt with in court, but dealt with administratively in the office, eg, an application for a writ of execution. The UCPR therefore contain a requirement that a notice of motion must state that the motion is to be dealt with in the absence of the public, if it is a motion of that kind: r 18.3(3).
As to nomenclature, the requirement is that, if a person making the application or against whom the application is made is already a party to the proceedings, the person must be identified as that party (eg, first plaintiff or second defendant). Only a moving party who is not a party to the proceedings (eg, a person seeking to be made a party or a liquidator or receiver) is to be described as an applicant and only a person who is to be served with the motion who is not already a party to the proceedings is to be described as a respondent: r 18.3(1).
As with originating process, costs need not be claimed in a notice of motion: r 18.3(2). On the hearing of a notice of motion, any party may make any application in relation to the proceedings: r 18.6. The court has a general discretion as to the order and conduct of the hearing of an application, as at a trial: r 18.9.
Among the limited instances in which applications may be made without filing and serving a notice of motion are cases where this would cause undue delay or prejudice, where orders are made by consent, or where the motion may be made without prior filing or service under the UCPR or the practice of the court: r 18.2(2). An example of the last mentioned is an application to arrest a person for disobedience of a subpoena: see Schnabel v Lui (2002) 56 NSWLR 119. Another example is an ex parte application for urgent relief under r 25.2.
RESOLUTION OF PROCEEDINGS WITHOUT HEARING
Gathered in Part 20, Resolution of proceedings without hearing, are rules relating to such matters as mediation (Div 1), statutory arbitration (Div 2), referees (Div 3) and offers of compromise (Div 4).
The power of all courts to order mediation is now contained in CPA s 26. A number of procedural matters relating to mediation have now been moved from the Court Acts into the Rules. Mediations can continue to be held outside the court structure and this will often occur when parties desire to engage a particular private mediator: s 34. Provisions that are new to the CPA include a specific provision that evidence may be called from the mediator and any other person engaged in the mediation in support of an application to give effect to an agreement arising out of a mediation: ss 29(2) and 31(b). Furthermore, a mediator to whom proceedings are referred by the court has in the exercise of his or her functions as a mediator the same protection and immunity as a judicial officer in the exercise of his or her judicial functions: s 33.
So far as arbitration is concerned, the Arbitration (Civil Actions) Act 1983 has been repealed and corresponding provisions incorporated in Part 5 of the CPA. As already noted, the relevant rules are found in UCPR Part 20 Div 2. The provisions as to rehearing have been simplified. The provisions of SCR Part 72 as to Referees have been moved into Part 20 Div 3, to the intent that they apply in all courts. Similarly, the rules for all courts as to Offers of compromise have been removed from their rules and are now contained in Part 20 Div 4.
DISCOVERY AND INTERROGATORIES
Discovery is provided for in UCPR Part 21. In accordance with case management principles, discovery must be obtained by order of the court; there is no provision allowing discovery to be required by notice. The form of order for discovery which is provided for is an order for discovery of documents within a class or classes specified in the order or of one or more samples of documents within such a class: r 21.2. There is no provision for the making of an order for general discovery. Although an order for general discovery was possible under the SCR, the practice had changed to such an extent that such orders were rarely, if ever, made. I have not made an order for general discovery in more than eight years as a Judge of the Equity Division. In view of the terms of r 21.2(3), I do not think an order for general discovery could be made under r 21.2 by specifying as a class of documents all documents relevant to all issues in dispute in the proceedings. Whilst the Supreme Court retains the power to make such an order in its inherent jurisdiction (CPA s 5(1)), I do not think this should or will be done.
Interrogatories, which are dealt with in UCPR Part 22, are now also to be administered only by order specifying the particular interrogatories: r 22.1. Interrogatories can still be an indispensable tool, but have already come to be only sparingly used. In any case, the court must not order interrogatories unless it is satisfied that the order is necessary at the time it is made: r 22.14. In personal injuries cases, discovery and interrogatories may be ordered only if the court finds that there are “special reasons” for doing so: rr 21.8, 22.13. Whilst Local Courts now have power to order discovery and interrogatories, bearing in mind the size of the claims they may now entertain, it is hoped that in the interests of proportionality of costs, such orders will be rarely made.
MISCELLANEOUS INTERLOCUTORY PROCEDURES
From this point on there is less change in both the provisions and the ordering of the rules in the UCPR as against the old rules. In Parts 23 to 27 of the UCPR, various interlocutory procedures are dealt with, mostly by translation of existing rules. Attention is drawn to the fact that in Part 24, relating to evidence on commission, the rules have been modernised by omitting reference to the taking of depositions, thus discarding a hangover from centuries of the recording of depositions in courts of petty sessions. Rule 24.12 refers instead to the recording in writing of the evidence. Rule 24.14 requires the person who prepares a transcript of the evidence to certify that it is a correct transcript. Rule 25.2 carries over the practice in the Equity Division of the Supreme Court as to ex parte applications.
SEPARATE DECISION OF QUESTIONS, TRIALS AND ASSESSMENTS
Again, Parts 28 and 29 are largely a carrying over of preexisting rules as to Separate decision of questions and consolidation and as to Trials respectively. Part 30 provides for assessment of damages and value of goods. It is to be noted that a new nomenclature relating to trials, hearings and interlocutory hearings is adopted. In CPA s 3 a “trial” is defined as “any hearing that is not an interlocutory hearing” and “hearing” is defined as including both trial and interlocutory hearing.
EVIDENCE
UCPR Part 31 generally carries over existing rules in all three courts in relation to evidence. One subject matter of debate was whether the general prescription as to the mode of evidence at trials in proceedings which have been pleaded should continue to be for oral evidence, as prescribed in SCR Part 36 r 2. This is against a background that the evidence in chief of witnesses at trials is now so frequently given in written form, by affidavit or witness statement, that, in more than eight years as a Judge in the Equity Division of the Supreme Court, I have never heard a trial at which the evidence in chief of witnesses was given orally. The time is clearly approaching when the rules should reflect this reality. However, for lack of time to survey the situation in all jurisdictions, it was determined to repeat the present rule, whereby oral examination is prescribed as the usual mode, with a power, almost always exercised, to order otherwise: r 31.1. In all other hearings, final and interlocutory, evidence in chief should be given in writing.
The existing rules carried over also include rules as to expert witnesses. The expert witness code of conduct is contained in UCPR Schedule 7. A notable innovation in relation to the giving of expert evidence is contained in r 31.26, which provides for the calling of more than one expert witness at the same time. This process is known as “hot tubbing”. It is generally based on FCR Order 31A r 3. The process has been extensively and successfully used in the Land and Environment Court. The new rule is wider than the Federal Court rule, in that it provides for the experts to ask each other questions.
Perhaps the matter as to which there was greatest controversy in the Working Party was as to the form of the rule governing, in the case of expert witnesses, whose duty it was to procure the attendance of an expert required for cross examination. The District Court was adamant that it should retain its existing rule, imposing this responsibility on the party seeking cross examination, although, ex hypothesi, the expert involved was not that party’s witness and was not retained by it. The application of this rule in all courts was advocated. However, the almost universal view of Judges of the Supreme Court was that the traditional system of the person calling the expert witness being responsible for the attendance of that witness should be retained in the Supreme Court: this has now been embodied in r 31.18A, applying to the Supreme Court. The Local Court has, understandably, adhered to the District Court regime, contained in r 31.19.
SUBPOENAS AND NOTICES TO PRODUCE
UCPR Part 33 and the approved form of subpoena conform to the national model adopted in the Supreme Court as a result of the work of the Chief Justices’ Rules Harmonisation Committee. Whilst Part 33 itself conforms with this model, exceptions required by the exigencies of local practice are, as has already been noted, incorporated in r 7.3, requiring a litigant in person to have leave to issue a subpoena, and r 10.20(4), as to the relaxed service requirement for subpoenas to produce documents in the District Court and the Local Courts.
The practice which had developed, in the course of the evolution of case management, to permit the production of documents for use in proceedings to be compelled, with the leave of the court, otherwise than at hearings, is maintained under these rules: r 33.3(6). This is contrary to the attitude in the old practice that it was an abuse of process to require a document to be produced otherwise than for the purposes of a hearing that was actually pending: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98.
Part 34 maintains the provision of SCR Part 36 r 16 permitting a party to be required by notice to produce to produce documents without the necessity for a subpoena. Again, the production can be required, with the leave of the court, at any time: r 34.1(b).
AFFIDAVITS
These are dealt with in UCPR Part 35. One of the main changes effected in relation to affidavits is as to filing. Previously all affidavits were filed. As we have progressed from oral to written examination in chief in civil proceedings, this has meant an enormous proliferation of paper for storage. Formerly, the evidence in chief in a trial did not even go on to paper until taken down and incorporated in the transcript. In relation to a matter settled before trial, the paper did not even come into existence. The new regime contained in r 35.9 is that, generally, affidavits are not to be filed, except where their filing is necessary to permit applications to be dealt with administratively. Examples of this are applications for the signing of default judgment (r 16.3) and applications for the issue of writs of execution (r 39.3). Practice Notes will govern the filing of affidavits for use at hearings before or, in court, at the trial and with other cases in which affidavits must be filed: see, eg, Practice Note SC Gen 4. Prior service will, of course, be necessary in all cases: see rr 10.1 and 10.2.
ORDERS
The making and entry of orders are dealt with in the UCPR in Divs 1 - 3 of Part 36. The setting aside and variation of judgments and orders are dealt with in Div 4.
The distinction has been maintained between the giving or making and the entry of a judgment or order. This is despite the fact that the judgments and orders of virtually all courts are already recorded in computer systems. It is anticipated that, when the CourtLink system comes into operation, it is in CourtLink that all judgments and orders will be recorded and, what is more, the computer record in CourtLink will be the court’s official record of those orders, which will prevail in the case of any conflict between computer and paper records. It may be thought that the opportunity should have been taken to elide the difference between the making and entry of orders. However, this would be a very dangerous and complex task, in view of the extensive jurisprudence concerning orders, entry and finality. It has been thought safer to maintain the distinction, but to provide that entry takes place when the order is recorded in a court’s computerised court record system: r 36.11(2). For the purpose of those systems operating in this way, it has been necessary to provide that all judgments be recorded and entered: r 36.11(1). This will probably mean that there will be many fewer unentered orders and that the time gap between order and entry will be reduced. This will have consequences as to the readiness with which judgments and orders may be set aside. Where there are reasons why an order should not be regarded as entered, although it is desirable to record it, the court will have power to direct that the order, although recorded, should be taken not to have been entered until the further order of the court: r 36.11(2).
Some people contend that there never was provision for entry of judgment in the District Court or the Local Courts. Certainly there was not a system for the settlement of minutes of orders by a registrar, such as prevailed in the Supreme Court. However, the process of formally recording judgments and orders in the records of the courts acted as entry for the purpose of the rules as to the finality of judgments: Bailey v Marinoff (1971) 125 CLR 529.
Now the same rule as to entry applies across all three courts. The recording in the present computer systems will stand as the entered judgment or order until CourtLink is introduced. If a paper record of the judgment is required, a sealed copy may be obtained from the registrar: r 36.12. It is such a sealed copy which must, for instance, be served with a warning note before the enforcement of an injunction by committal or sequestration: r 40.7.
Note the provisions of CPA s 86 as to whose motion an order may be made on and the power to impose terms and conditions on any order. These general provisions obviate the need to advert to these matters in specific provisions of the CPA and the UCPR.
There is also a general provision as to the effect of orders of dismissal. This, in general terms, carries over the provisions of SCR Part 40 r 8, which had the effect that a dismissal did not bar fresh proceedings, except after a hearing on the merits: Ferella v Otvosi [2005] NSWSC 678. This effect is now specifically enshrined in CPA s 91.
As to the setting aside of judgments and orders, it has been thought safer for the present time simply to bring across all the provisions applying in the different jurisdictions. In the Supreme Court, there were already various overlapping provisions relating to the setting aside of judgments. This situation is maintained for the present. What is more convenient than the old provisions is that, in respect of all courts, these are all gathered together in Div 4 of Part 36: rr 36.15 – 36.18.
COSTS AND INTEREST
Costs are dealt with in CPA Part 7 Div 2 and UCPR Part 42. There is no great change in the new regime. Essentially, preexisting limitations as to the ordering of costs against non-parties are carried over in r 42.3. The CPA adopts the Supreme Court regime, whereby there is no liability for costs without specific order and costs are always in the discretion of the court: CPA s 98. This means that the correct order where each party is to bear its own costs is, No order as to costs.
There is some simplification of the circumstances in which costs can be ordered against legal practitioners: see CPA s 99. Those circumstances are that costs, first, have been incurred by the serious neglect, serious incompetence or serious misconduct of a practitioner, or, secondly, have been incurred improperly, or without reasonable cause, in circumstances for which a practitioner is responsible. Remember that costs can also be ordered against a practitioner under the provisions of s 198M of the Legal Profession Act 1987 (“the LPA 1987”), which is soon to be replaced by s 348 of the Legal Profession Act 2004 (“the LPA 2004”).
An attempt has been made to rationalise a confusion in terminology, which has arisen in respect of costs. Prior to 1987 the two principal bases for the quantification of costs were called the party and party basis and the (more ample) solicitor and client basis. After the enactment of the LPA 1987, the more ample basis came to be called the indemnity basis. Furthermore, “party/party” and “solicitor/client” came to have a new meaning under that legislation as referring respectively to assessments of costs under court orders and assessments of costs between solicitor and client. These expressions referred (and refer) to the parties between whom the assessment took place, rather than to the basis of quantification. Courts, however, go on making reference to “party and party” costs as the lower basis of quantification. An attempt has been made to remove this anomaly by defining the lower basis of quantification as the “ordinary basis”, so that “party/party” will be left to refer only to the identification of persons between whom an assessment under the LPA 1987 or the LPA 2004 is taking place. See CPA s 3(1). This is very logical but, in the face of the ingrained conservatism of lawyers in the use of language, I do not know how it will fare.
Specific provision has been made for the making of “Smyth orders”. These are named after that very good Judge of the District Court, Judge John Smyth QC. They have over the years been made from time to time by other judges and magistrates. They are orders that a party’s legal representative serve on the party a notice of the best and worst outcomes (particularly of a monetary nature) which a party may gain or suffer if the proceedings are contested to finality. They are, of course, a tool to facilitate settlement in face of intransigence.
The pre-existing regimes as to pre and post judgment interest have essentially been carried over from the Court Acts into CPA ss 100 and 101.
ENFORCEMENT
The provisions as to the enforcement of judgments have been gathered together and rationalised: see CPA Part 8 and UCPR Parts 39 and 40. Reference to the various forms of enforcement has been gathered together and placed in order. The Judgment Creditors’ Remedies Act 1901 has been repealed and the necessary provisions transferred to the CPA. The courts are given a general power to give directions with respect to the enforcement of their judgments and orders: CPA s 135. There is specific provision for the appropriation of payments towards a judgment debt (first to interest and then to principal), which may not be varied except by court order: CPA s 136. I do not intend to deal fully with these matters, which are not the daily fare of judges and magistrates.
TRANSFERS BETWEEN COURTS
Flexible provisions have been made for the transfer of proceedings up and down between the three principal levels of courts in CPA Part 9 and UCPR Part 44. Proceedings may now be transferred by the Supreme Court direct to the Local Court: CPA s 146. If a higher court chooses to transfer proceedings to a lower court, then the lower court has and may exercise all of the jurisdiction of the higher court in relation to those proceedings: CPA s 149.
APPEALS
Reviews and appeals within a court are dealt with in UCPR Part 45. Appeals to a court are dealt with in UCPR Part 46 (this does not include appeals to the Court of Appeal, whose rules are not yet within the UCPR, but remain for the moment in the SCR). I have already observed that appeals to the court are in all cases to be commenced by summons (and cross appeals by cross summons), which may seem strange at first blush, but has functioned in the Supreme Court for 30 years without a problem.
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