Proctor : October 2018
24 PROCTOR | October 2018 On 17 August 2018, the Chief Justice of the Supreme Court issued Practice Direction Number 18 of 2018, which contains a number of requirements for practitioners acting for litigants in the Supreme Court. The practice direction can be found at courts.qld.gov.au > Court users > Practitioners > Practice directions > Supreme Court. This article highlights some of the important features of the practice direction. Management of documents Document plan The practice direction requires that, as soon as reasonably possible after the filing and service of a claim, and prior to filing a notice of appearance and defence, the parties are to confer and agree on a basic plan for the management of documents which deals with at least the following: a. a document management protocol (including the agreed format(s) for documents), and b. the provision of documents referred to in the pleadings. A form of an example document plan is contained in an appendix to the practice direction. The document plan is to be revised and developed as soon as reasonably possible after pleadings close, and as the proceeding progresses. As part of an agreed document plan, the parties should focus at an early stage on undertaking reasonable searches with a view to locating and exchanging documents that are necessary to resolve the matter promptly and with a minimum of expense. Exchange of critical documents Parties should exchange at an early stage of a proceeding, and as soon as possible after the close of pleadings, a limited number of critical documents, with a view to facilitating the early resolution of the matter. Efficient conduct of civil litigation New practice direction aims to reduce costs and time Critical documents are those documents in the possession or under the control of a party of which the party is aware after a reasonable search, and which are likely to be tendered at trial and to have a decisive effect on the resolution of the matter. They include documents that either support or are adverse to a party’s case. Resolution bundle The parties should consider the creation of a resolution bundle, ideally in a simple, electronic form, which contains only those documents that are likely to be beneficial in attempting to resolve the case and that are likely to have a decisive effect upon the resolution of the matter. This resolution bundle: a. may be supplemented with further essential documents following disclosure and other processes or a specific court order b. should be reduced in size once issues are resolved or narrowed c. should contain no more documents than are necessary to resolve the matter at that stage of the proceeding d. should be the basis for resolution of the matter at mediation or trial. Disclosure generally Litigants must utilise technology where possible to achieve efficiency. For example, litigants should investigate the use of technology to create and exchange electronic lists of documents, inspect documents and other material, prepare for trial and present evidence at trial. Conferences to narrow the issues in dispute As early as reasonably possible, or as directed by the court, the parties should confer for the purpose of resolving or narrowing the issues in dispute, identifying the real issues that remain in dispute, and agreeing steps for the just and expeditious resolution of those issues at a minimum of expense. The legal practitioners with the conduct of the trial, and each party or a representative of each party who is familiar with the issues in dispute, should attend the conference, unless excused from doing so by the court. Such conference may be in person, by video- conference or by telephone conference. Prior to the conference, the parties are expected to agree a short agenda. Part or all of the conference may be held ‘without prejudice’ by express agreement of the parties. The parties may agree to the appointment of an independent person to facilitate the conference. Avoiding the cost of proving facts and documents which should not be in contention Parties are expected to adopt a sensible and cost-effective approach to not requiring proof of matters which should not be in serious contention. A failure to do so may result in adverse costs orders against a party or a practitioner. The manner in which facts which are not in contention are recorded should be agreed by the parties. For example, a party may prepare a list of facts or matters which will not be disputed at the pending trial. A short summary of the issues to be tried The pleadings remain the basis upon which the issues to be tried are formally identified. However, given the complexity of many pleadings and as an aid to efficient court management of cases, the parties should prepare a list of the real issues in dispute. The list should be concise, and in a form that is most useful to the court. It may contain cross references to pleadings. If the parties agree that certain matters have become ‘non-issues’, then the issues that are not to be tried should be identified and the resolution of those issues recorded in a suitable form (either in a formal amendment to pleadings or some other clear form). If the parties are unable to agree about the real issues which remain in dispute, then they should seek to resolve any misunderstanding by requesting a case conference before the Resolution Registrar or a review/directions hearing before a judge.