Proctor : July 2019
35 PROCTOR | July 2019 if we collectively want to identify and narrow the real issues in a case, then we need something simpler to manage the process: a short summary of the issues to be tried. Documents In most substantial civil cases, too many documents are put into a ‘trial bundle’. This comes at a great cost. PD 18/2018 directs parties and practitioners to adopt “a proportionate and efficient approach to the management of both paper and electronic documents at all stages of the litigation”. 2 I emphasise “at all stages of the litigation”, because this is not just a problem about discovery. It is a problem about how parties and courts deal with documents from the time the statement of claim is served through to the last day of trial. PD 18/2018 requires you to confer and agree about a document plan as soon as reasonably possible after a claim is filed. Witnesses and trial plans Ascertaining what potential witnesses will say at trial is less of a priority than it used to be. Because more than 90% of cases settle, many experienced litigators have never seen a trial, or only seen a few, and do not give much thought to who the witnesses will be and how they will perform. Cases are more likely to settle on a fair basis if the parties know that, if it does not, there is a realistic prospect of an early trial. The court can only set down matters for trial if we know how long the trial is going to take. We only know that, if you turn your mind to the real issues that are to be tried, and reach agreement about facts and documents which should not be in contention. The culture of speaking to each other If there is one cultural change that I hope the practice direction achieves, it is to require litigators to confer (in person or by telephone), agree a document plan very early (even before the defence goes in), narrow issues and work out a trial plan. The court expects you as practitioners to confer as early as reasonably possible so as to identify the real issues that remain in dispute. We need you to agree at an early stage that formal proof is not required of facts and documents that should not be in contention. We want you to confer and work out two basic things: 1. What is this case really about? 2. How are we going to resolve it? Those questions require you to address at an early stage: a. the documents that are likely to be critical to the resolution of the case, and a document plan that is practical and proportionate b. the real issues in dispute c. how to minimise the costs of proving facts and documents that should not be in contention d. the witnesses who will really be required if this matter goes to trial, and how long any trial will take. If these matters are addressed, trials will be shorter and costs will be saved. Practitioners acting professionally should be able to agree efficiencies and narrow issues without court intervention. But if you cannot, the Resolution Registrar or a judge will help you to resolve matters, so the real issues can be resolved at a minimum of expense to your clients. That might also make the practice of the law closer to what you imagined it would be. CIVIL LITIGATION Notes 1 Rule 5 of the Uniform Civil Procedure Rules 1999. 2 Supreme Court of Queensland Practice Direction Number 18 of 2018, ‘Efficient Conduct of Civil Litigation’, 5. Justice Peter Applegarth is a justice of the Supreme Court of Queensland in the Trial Division. Julie Ruffin is the Resolution Registrar at the Supreme Court of Queensland. FROM THE RESOLUTION REGISTRAR’S PERSPECTIVE Despite good intentions, it is not always possible for parties to resolve contentious matters quickly and efficiently. PD 18/2018 provides a mechanism whereby parties can confer with a view to removing obstacles to the efficient progress of a matter to trial. To this end, the case conferencing regime has been introduced in the Supreme Court and the role of Resolution Registrar has been created and tasked to oversee the regime. Case conference Matters such as the contents of the trial bundle, or the timing of witnesses at trial, can and should be dealt with in correspondence in the first instance. However, agreeing on these matters can be a logistical nightmare. There are occasions when correspondence is ignored or only addressed shortly before the final hearing. Although it is common to exchange a notice to admit documents and notice to admit facts in the lead-up to trial, it is equally common to respond to these in an automatic way, keeping all facts and documents in issue pending advice from counsel. If the parties are unable to agree on a document management plan, the real issues in dispute, the readiness of a matter for trial or the expected duration of the trial, they may request a case conference before the Resolution Registrar. Parties requesting a conference should contact the Resolution Registrar by email and the conference will be arranged for a mutually convenient time. For regional jurisdictions, the conference can be conducted by Skype or telephone. Conferencing affords a valuable opportunity to sort out facts, issues and documents well before trial. In almost every case conference conducted to the present time, parties have made concessions about facts, issues and documents so that potential problems have been resolved at a much earlier stage. Further, these practical and focused discussions have highlighted those matters not in dispute and at times have led to agreement on major issues or the resolution of the entire claim. Practical aspects A case management conference is relatively informal and is held in a conference room rather than a courtroom. Conference notices are delivered to the parties by email. The duration of the conference varies depending on the complexity of claim, and the parties involved, and takes anywhere between half an hour and two hours. Parties are required to prepare for the conference so that any issues are identified and can be meaningfully discussed. The conference is on an ‘open’ basis but litigants have the opportunity to engage in ‘without prejudice’ discussion if so desired. Directions are put in place at the conference, timetabling the outstanding steps to be completed in the period leading to trial. Such a timetable makes it infinitely easier to efficiently manage a proceeding. Why require a conference? Conferencing provides the opportunity to clear the lines of communication between the parties and discourages an approach that impedes the efficient conduct of litigation. The scale and complexity of the claim dictates the nature of the processes necessary for compliance with the practice direction. At first blush, PD 18/2018 may appear to impose additional procedural steps, but ultimately it does no more than require practitioners to embed good practices in the conduct of every claim.