2. Case Management

Question 1

What is the purpose of case management?

Answer 1

QLD: The purpose of the rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense: r5(1) UCPR

FCT: The overarching purpose of the civil practice and procedure provisions is to facility the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible: s37M FCA

Question 2

What are ‘real issues’?

Answer 2

The “real issues” are those for which there could be a genuine dispute and the rules for pleading operate to confine a case to them: Anderson

Question 3

What is the practical operation of the purpose (QLD)?

Answer 3

Rules are to be applied by crts with the objective of avoiding undue delay, expense and technicality and facilitating overarching purpose: r5(2) UCPR

Parties impliedly undertake to proceed in an expeditious way. Crt may impose appropriate sanctions for failure to comply (e.g. dismiss or costs): rr5(3)-(4) UCPR

To achieve justice, speed and economical determination of civil proceedings, r 5 there is a “two-pronged” strategy: r 5(2) focuses on the court’s application of the UCPR, while r 5(3)–(4) impact upon the parties’ conduct of the proceeding.

Question 4

What is the practical operation of the purpose (FCT)?

Answer 4

Rules must be applied, and powers of the crt exercised in the way that best promote: the just determination of matters, the efficient use of the crt recoursces and disposal of crt case load, in a timely manner at a cost proportianate to the complexities and importance of the issues, per s37M FCA

1. just determination of all proceedings;
2. efficient use of the court resources;
3. efficient **disposal **of crt overall caseload;
4. disposal of all proceedings in a timely manner;
5. resolution of disputes at a cost that is proportionate to the importance and complexity of the matter.

Question 5

What rules in the UCPR give effect to the overarching purpose?

Answer 5

r 367(1): gives crt discretion to make orders or directions about a proceeding’s conduct which may be inconsistent with UCPR, r 367(2) but “interests of justice are paramount” when making such order or direction; and

r 371(1) and r 371(2): permit non-compliance with the UCPR to be declared effectual as an irregularity, rather than a nullity

Question 6

What obligation are parties and lawyers under (QLD)?

Answer 6

Parties impliedly undertake to proceed in an expeditious way. Crt may impose appropriate sanctions for failure to comply (e.g. dismiss or costs): rr5(3)-(4) UCPR

Question 6

What obligation are parties and lawyers under (FCT)?

Answer 6

Under a duty to comply with the overarching purpose (includes negotiations for settlement), if not it may result in a costs consequence: s37N FCA

Question 7

What are the key considerations for the crt when exercising discretion to allow amendments? # (hint there are 5)

Answer 7

1. Whether delay was caused by an error of judgment or deliberate tactical decision; Cement (error) cf Aon Risk (deliberate decision);
2. Extent to which proposed amendments depart from the party’s case and requires revisiting previous interlocutory steps: Cement (alternative market, likely to rely on substantially the same evidence and arguments) cf Aon Risk (ANU sought leave to plead and entirely different case which would essentially require Aon to begin defending the litigation again from the beginning);
3. The stage of the proceedings relative to trial;
4. The effect of an adjournment on crt resources and the competing claims by litigants in other cases awaiting hearing: Sali v SPC Ltd;
5. The risk of undermining public confidence in the administration of justice by allowing matters to be determined by reference to a mere ‘technicality’ instead of on the merits – particularly in cases of significant public interest: Cement

Question 8

What is the principle in Aon Risk?

Answer 8

Crts discretion in considering matters such as leave to amend is not entirely unfettered and must be exercise considering the purposes and objectives of case management principles.

‘Justice’ requires consideration of the resolution of the proceedings, but also the effect of any delay on the public resources of the crt and other litigants.

Where a party has had sufficient opportunity to plead their case, it may be necessary for the crt to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants: Aon Risk

BUT case management principles do not require that every application for amendment be refused because it involves the waste of some costs and some degree of delay. Anon is not one size fits all, factors such as the nature and importance of the amendment to the party applying cannot be overlooked – but it cannot trump all other considerations: Cement

Prty seeking must generally provide evidence explaining cause of any delay: Aon Risk: Cement Australia (counsel evidence from bar table sometimes acceptable);

Question 9

What are the Crts powers re directions (QLD)?

Answer 9

Crt can make any order or direction about the conduct of a proceedings as it considers appropriate (including orders inconsistent with the Rules): r 367(1) UCPR

Question 10

Give examples of what Crt can do (QLD)?

Answer 10

Crt can: r367 (3) UCPR:
(a) require copies of pleadings for crt use;
(b) limit time for trial or hearing;
(c) limit time for party to present case;
(d) require evidence by affidavit, orally or in some other form;
(e) limit the no of witnesses (incl expert witnesses);
(f) limit time for X, XX and reX;
(g) require submissions in certain form, e.g. written, oral or both;
(h) limit time for oral submissions and/or written submissions/affidavits;
(i) prior to the hearing require parties to provide statements of witnesses to be called.

Crt may impose sanctions for failure to comply with overarching purpose: r5(4) UCPR

Crt may put matter on Supervise Case Listor Commercial List

Question 11

In making a direction or order under 367 what can the crt have regard to under the rules (QLD)?

Answer 11

Can have regard to r367(4) UCPR:
1. each party is entitled to a fair trial or hearing;
2. time allowed for taking step in proceeding/trial/hearing is reasonable;
3. complexity/simplicity of the case;
4. importance of the issues and the case as a whole;
5. volume and character of the evidence to be led;
6. time expected to be taken by the trial or hearing;
7. number of witnesses to be called by the parties;
8. each party given a reasonable opportunity to lead evidence and XX;
9. state of the crt lists;
10. another relevant matters.

Question 12

What are the Crts powers re directions (FCT)?

Answer 12

Crt can give directions about the practice and procedure to be followed in relation to the proceedings, or any part of a proceeding.

Includes orders in response to non-compliance with a previous direction, order setting time limits, striking out pleadings, awarding costs, disallowing or rejecting evidence: s37P FCA, including:
1. require things to be
done;
2. set time limits;
3. limit the number of
witnesses or docs;
4. provide for **submissions **
to be in writing and limit
their length;
5. waive any Rules; or
6. revoke or vary an earlier
direction: s37P(3) FCA

Question 13

What orders can the crt make (FCT)? (hint: 3 ‘topics’)

Answer 13

General:Crt can make any orders, subject to any conditions, it considers appropriate, having regard to the nature and complexity of the proceedings and in the interests of justice: rr1.31; 1.32, 1.33 FCR

Rules: Crt can make orders: dispensing with compliance with the Rules, inconsistent with the Rules, extending timeframe for compliance, including re non-compliance: rr 1.34, 1.35, 1.39 and 1.42 FCR

How: Crt can exercise power in the Rules on own initiative or application of a party with sufficient interests: r1.40 FCR

Question 14

Give examples of the type of orders the crt might make (FCT)?

Answer 14

1. make orders other than in open Court: r1.36 FCR
2. give directions to Registrars: r1.37 FCR
3. fix a time for the doing of anything in relation to a proceeding if no time is fixed by the Rules and can extend time for compliance: rr1.38 – 1.39 FCR
4. at any stage of a proceeding exercise a power under the Rules on its own initiative or on application, either by a party or by a person who has a sufficient interest in the proceedings: r1.40 FCR
5. grant or refuse to grant an order sought or make a different order: r1.41 FCR, to be read with s23 FCA [says that crt has pwr to make orders, including IA and issue of writs, as thinks appropriate]

Question 15

What directions can the crt make (FCT)?

Answer 15

Can make directions for the management, conduct and hearing of a proceeding at any hearing: r5.04 FCR, including:
1. amendments to OA or
pleadings;
2. discovery and
inspection of documents;
3. matters relating to crt
experts, e.g. no of
experts, exchange of
reports, conferences;
4. giving of evidence, e.g.
orally or affidavits or
both, no witnesses, no
of documents, provision
and page limit to
submissions.

Question 16

Failure to comply with rules (Qld)?

Answer 16

Is an irregularity and does not render the proceeding, document, step taken or order a nullity: r371 (1) UCPR

Crt may make various orders in response to failure to comply: r371(2) including:
(a) Set aside all or pt of proceeding;
(b) Set aside step taken or orders made;
(c) **Declare a document **or step to be ineffectual;
(d) Declare a document or step to be effectual;
(e) Make such order as crt considers appropriate

Application for an order under r371 must set out details of failure to comply: r372 UCPR

Question 17

Failure to comply with rules (FCT)?

Answer 17

Court may dispense with compliance with rules:** r1.34 FCR**, but the application needs to be considered in light of Aon Risk, noting not one size fits all Cement)

Crt can make orders inconsistent with rules: r1.35 FCR.

Can fix the time for doing an act or thing or extend or shorten times fixed by the rules: r1.39 FCR, three main things that should be considered (Bahonko):
1. the explanation of the delay;
2. **any prejudice **to the respondents; and
3. whether the applicant has an arguable case.

Crt can specify in an order the consequences of not complying with the order: r1.42 FCR

Question 18

Delay in proceedings (QLD)?

Answer 18

Dismissal for want of prosecution: D or R may apply for dismissal for want of prosecution if the P or A fails to take step required by the Rules, or an order, within the required time: r280 UCPR. This order may be appealed, varied or set aside if the parties agree or it is made ex parte: r280(3)-(4) UCPR.

Must show under r280:
1. there is a rule or order that requires a step within a stated time;
2. A or P does not do the step within the time; and
3. D or R applies to the crt to dismiss for want of prosecution.

It is not the failure to comply with every act required by the rules that will “trigger” the operation of r280 UCPR.

Question 19

What is a ‘step’ for the purpose of r280 UCPR?

Answer 19

“step”: the act must be one which carries the proceeding forward and is intended to continue the litigation, it must have an impact on the opposite party (i.e. not one just for that pty e.g. application under r280)

Question 20

Continuing proceedings after delay (Qld)?

Answer 20

Continuation of proceeding after delay: r389 UCPR:
1. If no step taken for 1 year since last step, must give one month’s notice to every other party before taking next step:

2. If no step taken for 2 years since last step, cannot proceed without order of the crt (which may be made without notice).

Question 20

Calculation of time (FCT)?

Answer 20

r 1.61(1), (2): if the time is to be calculated by reference to a particular day or event, and the time fixed is one day or more:
o the particular day or the day of the particular event is not to be counted;
o if the time fixed includes a day that is not a business day in the place where the act or thing is to be done, and the time fixed is five days or less, that day is not to be counted.

Question 21

Effect of listing on Supervised crt list (Qld)?

Answer 21

Matter assigned to Supervising Judge (SJ);
1. required to attend regular reviews before SJ reviews can deal with:
(a) parties;
(b) pleadings and particulars (attempt to resolve issues re pleadings at early stage);
(c) disclosure;
(d) ADR;
(e) any issue to be dealt with before trial;
(f) expert evidence (e.g. conferences etc); and
(g) trial arrangements.

2. whether should make directions varying disclosure provisions under UCPR (e.g. give effect to a document plan);
3. document management plan to be followed;

4.expected to attempt ADR;

5. must follow specific provisions re request for trial date, preparation for trial and expert evidence (no date unless request for trial date is filed, or Judge orders; before request, each party inform SJ of status: pty check if pleading reflect the case; whether maintain challenge to pleadings/particulars; if will adduce evidence; if will make an offer to settle under the rules; seek directions re trial bundle; id documents intend to rely on; if W evidence to be given orally or other form; exchange schedule of objections; trial plan).

Removal from SCL: may be removed from SCL by order of a Judge at any time or SCL manager where proceeding has been finally determined.

Question 21

When will a matter be placed on the supervised crt list?

Answer 21

Matter will be placed on the SCL where:
1. trial estimate is more than 5 days; or
2. cases (or grp of cases) is identified as imposing greater than normal demand on resources (e.g. because of time, complexity or no of parties); or
3. matters may also be placed on SLC by judge or at a party’s request to the SCL manager.

Question 22

What is document management under SCL PD?

Answer 22

Document management guidelines: to be applied with r5 of UCPR.

Arose due to fact that: in most civil proceedings issues are determined by ref to a small no of critical docs; BUT
in many civil proceedings large volumes of docs are retrieved and reviewed at great cost resulting in delay/over-disclosure; THAT’s WHY
cost-effective resolution may be achieved by early exchange of critical docs (‘critical docs’ those in po’sion/control of a pty and likely to be tendered at trial and to have a decisive effect on the resolution of the matter, whether supportive or adverse);

Therefore:
1. parties must address and plan doc management as early as possible in litigation;

2. parties must exchange docs in a usable, searchable format to enable access, search, review and display docs;
3. subject to an order to the contrary, a party is not required to give disclosure under rr214/216 UCPR until ordered by the crt; and
   (a) shld give consideration at an early stage for an order under r224 UCPR that the pty be relieved of disclosure.
   (b) Pty must undertake reasonable searches, bearing in mind the principle of proportionality (factors relevant to ‘reasonableness’: no of docs and location; nature and complexity of proceedings; ease and expense of retrieval; significance of any doc).
   (c) Parties are required to inform each other about the extent of searches/or claims of privilege = ‘Disclosure Statement’.

Question 23

What are the applicable practice notes?

Answer 23

1. Supreme Court Practice Direction No. 11 of 2012 (Supervised Case List); and
2. Practice Direction No 1 of 2023 – Commercial List.

Question 24

Purpose of commercial list practice direction?

Answer 24

Just, expeditious and efficient resolution of commercial matters at a minimum of expense and to improve conduct of commercial litigation.

Question 25

When will a matter be placed on commercial list?

Answer 25

Following OA, or in exceptional circumstances before proceedings started, party can apply to have matter placed on CL. Matter may be placed on CL by a party if the issues are, or are likely to be, of general commercial character, or generally arise out of trade or commerce, including ecommerce.

Question 26

Obligations arising when on commercial list?

Answer 26

Matters are to be conducted consistent with r5 of UCPR, and parties and their lawyers are expected to co-operate with Crt and each other in early id of real issues in dispute and the resolution of those efficiently and expeditiously.

Question 27

Effect of listing on commercial case list?

Answer 27

Placing a matter on commercial list will mean it is supervised by a Commercial List Judge, who can make directions(incl on the papers), **list **the matter for review and directions; parties are expected to confer and id and resolve as many issues as possible prior to review and agree steps and directions.

If the matter is listed for review, it may involve the hearing and determination of substantive issues, contested IA may be decided.

Question 28

What rules apply to IA on commercial list matters?

Answer 28

1. rr444-445 UCPR apply;
2. r444-445 letters to be emailed to CLJ seeking IA;
3. IA will be heard by CLJ, unless necessary for expediency to be heard by another;
4. Parties should always consider whether an IA can be heard and determined on the papers.

Question 29

Communication with crt on commercial list matters?

Answer 29

CL objectives better achieved if legal practitioners are able to keep Court informed (i.e. must inform Court if can’t comply with direction or order).

That’s why for CL matters lawyers are permitted to email the Associate as long as it is factual, civil, and uncontroversial. In such cases, they don’t need to get permission of the other parties before sending the email but need to copy in the legal practitioners for the other parties.

Question 30

Expert evidence re commercial list matters?

Answer 30

Chapter 11, Part 5 of UCPR applies to CL proceedings, and subject to r5 UCPR. The efficient conduct of the CL requires parties to confer at an early stage and seek directions, as needed, regarding:
1. formulation of issues to which expert opinions directed;
2. assumptions upon which expert opinion to be based;
3. briefing expert and relevant documents;
4. provision of additional information or instructions; and
5. conferring of experts

Question 31

What are the key considerations in relation to case management principles, and applications to amend etc?

Answer 31

Whether delay was caused by error (per Cement) or tactical decision (per Aon Risk);
Extent to which proposed amendments depart from the party’s case (Cement- rely substantially same evidence c/f Aon - sought to plead entirely different case);