New South Wales District Court - Practice Note No. 1
There are various changes made to the District Court Practice Note No.1, which will come into effect on 16 October 2017.
The essence of this Practice Note is to facilitate the just, quick, and cheap resolution of matters in the Court, and this practice note applies to cases in the General List of the District Court in the Sydney, Gosford and Newcastle registries. The Court aims to complete matters within 12 months of commencement.
Matters brought in the Sydney, Gosford and Newcastle general lists will be allocated:
- A Pre Trial Conference 2 months after filing of a statement of claim; and
- A Status Conference 7 months after filing of a statement of claim.
We have identified some of the relevant clauses which defendants and insurers will need to be aware of. Some of these clauses have not changed from the previous Practice Note dated 28 August 2009.
- The plaintiff’s preparation for trial must be well advanced before filing the statement of claim (Clause 2.2).
- Before commencing proceedings or filing a defence, legal practitioners must give their clients notice in writing about the requirements of this Practice Note and of the Court’s insistence on compliance with its orders. That notice must state that the Court may dismiss actions or cross claims or strike out defences if orders are not complied with and that the Court may make costs orders against parties who fail to comply with its orders (Clause 2.1);
- The defendant must arrange medical examinations for the plaintiff on receipt of the Statement of Claim and supporting documents (Clause 2.5);
- The plaintiff must serve proposed consent orders for the preparation of the case on the defendant with the statement of claim (Clause 3.1);
- If the defendant does not agree with the proposed orders, or wants to add additional steps, it must serve amended consent orders on the plaintiff’s solicitor at least 7 days before the pre-trial conference (Clauses 3.2);
- Prior to the pre-trial conference, the defendant will have requested particulars, the plaintiff will have supplied answers, and the defendant should file and serve a defence and any cross-claims (Clause 3.3);
- Cases will generally not be put into the Intentional Torts or Professional Negligence list unless they are of a significant value and/or complexity. Cases concerning a claim for less than $300,000 and cases which do not require special case management will not usually be placed into these lists (Clause 5.5) (NB This amount has increased from $150,000, which was prescribed by the previous practice note);
- All reports must be served at least 28 days before the status conference (Clause 5.7);
- Parties must have instructions about alternative dispute resolution when they attend a status conference to allow directions to be made as to alternative dispute resolution or a hearing to be fixed (Clause 8.4).
- Where a case is estimated to take three days or more at hearing, the Court will generally direct the parties to participate in a mediation (Clause 11.2); and
- Where a case is estimated to take less than three days, the Court will generally order the parties to arrange a settlement conference. The parties and their legal representatives must attend, and in cases of an insured party, an officer with authority to resolve the matter must attend (Clause 11.3).
We have noted the following practical difficulties in medical negligence cases since the previous Practice Note was introduced in 2009:
- Rule 15.12 Particulars are not served routinely with the statement of claim as contemplated by Clause 2.5. This can result in some guess work in arranging medical examinations, which are expensive with experts such as psychiatrists and occupational therapists;
- Damages reports are often served after the pre-trial conference contrary to clause 2.2;
- Proposed consent orders are generally discussed between the parties the day before the pre-trial conference contrary to clauses 3.1 and 3.2;
- Compliance with clauses 2.5, 3.3 and 5.5 is hindered by late service of the statement of claim and/or delays in the defendant notifying its insurer;
- There are often long lead times with arranging medical examinations with some specialists including psychiatrists and rehabilitation physicians which impacts on compliance with clause 5.7.
- Completion of service of liability, causation and damages reports before the status conference is generally problematic.
Finally, Schedule 1 of the Practice Note provides for Standard Orders for Hearing. These remain essentially unchanged particularly in relation to concurrent evidence of experts. They provide no time frame for which experts are to confer and provide a joint report unlike the equivalent Practice Note in the NSW Supreme Court. In practice, District Court conclaves often occur shortly before a hearing commences or even during the hearing.
Don Munro, Senior Consultant
Molly Morgan, Associate