District Court of Western Australia

Circular to Practitioners CIV 2007/1

Date of issue: 3 August 2007

Revised: 11 February 2008, 11 November 2009,

15 March 2010, 1 July 2011

CASE MANAGEMENT

Summary: The Circular sets out the way in which the District Court manages cases from commencement to entry for trial. The Court focuses its active case management oversight on areas that it considers require attention from time to time.

1. Introduction

The case management regime in the District Court is set out in the District Court Rules 2005 (“DCR”).

The outcomes of case management in the District Court are to:

· Promote the just resolution of litigation.

· Facilitate the timely resolution of litigation at a cost affordable to parties and proportionate to the value and complexity of what is in issue.

· Maximise the efficient use of scarce judicial and administrative resources.

· Ensure that, where a case proceeds to trial, the issues are clearly defined, evidence is presented in an efficient manner and the materials for the Judge are complete and well organised.

· Avoid undue delay, and efficiently dispose of the business of the Court.

· Maintain public confidence in the administration of justice by the District Court.

These outcomes have to be achieved in the context of the ultimate aim of a court which is the attainment of justice (see generally AON Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; Qld v JL Holdings Pty Ltd (1997) 189 CLR 146).

In answering the question of how best to achieve these outcomes, the Court will aim to deploy the resources available for case management to those cases where the outcomes of case management are most at risk of not being met.

This Circular to Practitioners supersedes Circular to Practitioners CIV 2005/3.

2. References to “usual” orders

Circulars to Practitioners issued by the Court make reference on occasion to “usual” orders.

The purpose of making reference to “usual” orders is to give parties and their lawyers an indication of the type of order that will commonly be made in an identified scenario.

The reference to a “usual” order should not in any way be considered as binding or limiting the Court’s discretion. In each case the Court will make those orders necessary to facilitate the attainment of justice in the circumstances of the particular facts before it.

3. Stages

The standard case management timetable in the DCR is as follows (r 30):

Milestone / Time
Commencement / No milestone
Defence / No milestone
Entry for trial / 120 days after first defence
Pre-trial conference / 160 days after first defence
Listing conference / 200 days after first defence
Trial / 290 days after first defence
Judgment / 360 days after first defence

Although there is no milestone for case management purposes until a defence has been filed, this does not affect the ability of the parties to take whatever steps they consider appropriate to progress or finalise an action at this stage. The Rules of the Supreme Court 1971 (WA) (“RSC”) as they apply to the District Court (see DCR r 6) impose a timetable for pleadings. The parties have remedies where there has been non-compliance with the relevant rules, including the ability to enter default judgment or seek judgment on a springing order where there has been non-compliance with an order of the Court.

The Court’s approach to case management is to use the stages set out in DCR r 30 as a framework. The time between entry for trial and the first pre-trial conference is in the hands of the Court to meet through its listing practices. Likewise, the time between trial and judgment is a matter for the Court.

This leaves 3 stages which will be the subject of active case management:

· Entry for trial stage - Lodgment of defence to entry for trial

· Pre-trial conference stage – First pre-trial conference to commencement of listing conference

· Callover stage – First listing conference to commencement of trial.

Management of cases in the pre-trial conference stage is dealt with in Circular to Practitioners CIV 2006/5. Management of cases in the callover stage is dealt with in Circular to Practitioners CIV 2006/6. The remainder of this Circular to Practitioners deals with management of cases prior at the entry for trial stage.

4. Requirements on parties

The 2005 DCR impose a number of obligations on parties to serve, and in some cases file, documents prior to entry for trial, as follows:

Time / Party required to take action / Rule / Action
Within 60 days of first defence / Party claiming damages / 45C / File and serve particulars of damages
Within 60 days of first defence / All parties / 46 / Give discovery
Within 75 days of first defence / Plaintiff in an action on building or engineering contract / 45D / Apply for directions as to the filing of a Scott Schedule
Within 120 days of first defence / Plaintiff / 37 / File and serve Entry for Trial

Annexure A to this Circular is an example of a set of particulars of damages.

5. Entry for trial milestone

Under the DCR, the action is to be entered for trial within 120 days after first defence is filed. If the action is not so entered for trial, the Court will issue a Form 2 notice of default (r 38). If that form is not complied with, the action is taken to be inactive and is placed on the Inactive Cases List (r 44, 44D). If that occurs, the Court will send to the parties a notice advising that the action has been placed on the Inactive Cases List, and of the effect of r 44E and r 44G.

If a case is on the Inactive Cases List, only the following types of documents may be lodged (r 44E):

(a) a Form 1 Entry for Trial (which may be lodged by any party – r 38(2));

(b) a consent order finalising the action;

(d) a summons for an order dismissing the action for want of prosecution; or

(e) any document that relates to a document listed above.

Once an action is on the Inactive Cases List, the Court cannot accept a consent order removing it from the Inactive Cases List and extending the entry for trial milestone.

The Court will accept a consent order extending the time within which the action must be entered for trial prior to the date on which the action is placed on the Inactive Cases List. The consent order will be reviewed by a Registrar who may wish to summons the parties to a directions hearing in any event. The consent order should briefly record the reason for the extension or the explanation could be contained in a covering letter. Examples supporting an application for extension include where:

· the parties are waiting for an expert’s report to be finalised; or

· the plaintiff’s medical condition is not yet stable enough for the matter to progress to trial.

An example consent order is set out at Annexure B.

6. Directions hearings to extend the entry for trial milestone

Where a chambers summons is filed seeking to extend the entry for trial milestone, the Court’s expectation for this directions hearing is as follows:

(a) Unless directed to do so by the Court beforehand, there is no need for any party to file an affidavit supporting (or opposing) the extension. If required, the Registrar convening the directions hearing will direct that a party file an affidavit deposing to particular facts relevant to the grant of an extension.

(b) If there is a need for any of the parties to take particular action before the matter can be entered for trial, the plaintiff should set out the orders required in the chamber summons. The orders should comprise a programme of all that needs to be done in order to enter the matter for trial. Examples of the orders that may need to be made include:

· Requiring a party (including a third party) to give discovery or inspection, either generally or of particular documents; or

· Orders in relation to expert evidence pursuant to RSC O36A.

(c) It is open for any other party to seek orders at the directions hearing. In this case, the party should file and serve a minute of proposed orders. Any party seeking directions or orders at the directions hearing must comply with DCR r 34 and give the other parties at least 2 clear days notice of the orders sought. Obviously, if more notice can be given that may well assist the efficient disposition of the matter at the directions hearing.

(d) If, in the usual course, the orders sought by a party at a directions hearing would need to be supported by an affidavit, then the party should file and serve an affidavit in support (for example, an application for discovery of specific documents).

(e) The RSC and the DCR require the parties to consult about the orders required prior to the directions hearing and endeavoured, in good faith, to have resolved as many of the issues giving rise to the summons as possible (see DCR r 22).

(f) If there is a contested application at the directions hearing which, in the ordinary course, would have gone to a special appointment, the Registrar hearing the application may list the matter for a special appointment. The listing will usually be done at the directions hearing. Parties wishing to have their unavailable dates taken into account should bring those dates to the directions hearing.

(g) The Court’s expectation is that counsel or the solicitor attending on the chambers summons will have sufficient familiarity with the case to make submissions on any case management matter likely to arise in order to progress the case through to entry for trial.

7. Inactive actions

An action may be placed on the Inactive Cases List in one of three ways:

(a) breach of the entry for trial milestone (r 44, r44D);

(b) by order of the Court (r 44C, r 44D);

Where an action is placed on the Inactive Cases List, the Court must give all parties a notice that this has occurred and of the effect of r 44E and r 44G. DCR r 44E is discussed above.

DCR r 44G provides that an action that is on the Inactive Cases List for 6 months is taken to have been dismissed for want of prosecution. Parties will be given notice if this occurs (but no warning that it is about to occur). Where an action is dismissed pursuant to r 44G, the parties may apply to the Court for consequential orders, for example, as to costs or the disposition of a counterclaim.

8. Third party proceedings

Third party proceedings have the potential to (and in many cases do) cause prejudice to the plaintiff in the form of costs and delay while the issues between the defendant and the third party are being sorted out.

When a party applies for leave to issue third party proceedings, the usual order will set a specific time for service of the third party proceedings, and provide for ongoing case management. The usual orders will be in the following terms:

“1. The Defendant do have leave to issue a Third Party Notice directed to [name of proposed third party].

2. By [insert date], the Defendant do serve on the Third Party:

(a) the Third Party Notice;

(b) a copy of this order;

(d) a statement of claim in the third party proceedings [if appropriate].

3. The application be adjourned to a directions hearing on [insert date] at [insert time].”

The date in paragraph 3 will be approximately 6 to 8 weeks after the date of the initial hearing. It will serve two purposes. If the defendant has filed a summons pursuant to RSC O 19 r 4, it will be the return date of the summons. If no summons has been filed, then the Court will use the directions hearing to inquire into the progress of the third party proceedings.

When third party directions are made, the usual order will provide for the matter to be listed for a directions hearing at a point in time when the orders made should have been complied with:

“The third party proceedings be listed for a directions hearing on [insert date] at [insert time].

There be liberty to any party, including the plaintiff, to apply for an earlier directions hearing.”

The directions hearing is for the action and the third party proceedings, so all parties must attend by their lawyer or in person. The defendant is to notify all parties of the date of the directions hearing.

The purpose of the directions hearing is for the Court to review the progress of the third party proceedings in the context of the action as a whole. It will provide an opportunity for a plaintiff who considers that its position is being prejudiced by delays in the third party proceedings to raise its concerns with the Court.

Any party seeking to have the Court make orders at any of the directions hearings referred to above must comply with the service requirements in DCR r 34(2).

A plaintiff with access to eLodgment can view the index to documents filed in the action online to monitor the progress of the third party proceedings.

Where a defendant has commenced third party proceedings without leave, and the plaintiff is concerned about the progress of the third party proceedings, the plaintiff may request the Court to list the action for a directions hearing. At the directions hearing, the Court can inquire into the progress of the third party proceedings and make appropriate orders.