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Page 1 of 35 © The New South Wales Bar Association - Professional Development Department

Equity and Commercial Practice in the Supreme Court of New South Wales in 2005

Clifford Einstein QC and Mark Brabazon, April 1996*

Revised by Mark Brabazon, February 1999, June 2002, February 2005; Carol Webster August 2007

INTRODUCTION Cases in the Equity Division of the Supreme Court and in the Commercial List, the business of

which is assigned to the Equity Division, are often won by careful and timely preparation. This

paper deals with general Equity and Commercial List practice with a view to achieving efficiency

in litigation and forensic advantage.

Topics covered include

applicable Practice Notes,

usual orders and directions,

practice with respect to expedition, and

selected provisions of the Supreme Court Rules.

With the exception of the Commercial List, rules specific to particular subjects within the general

Equity jurisdiction and the rules and practice relating to particular specialized subjects which are

assigned to the Equity Division are not addressed.

* This paper was originally written by Einstein Q.C. (now Einstein J) and Brabazon in 1996. The authors gratefully

acknowledge the helpful comments of Judges of the Equity and Commercial Divisions, particularly Brownie J,

McLelland CJ in Eq, Bryson and Cohen JJ, and Rolfe ACJ Comm Div and Hunter J, on earlier drafts of the original

paper, and of Acting Master Berecry on a draft of the 2005 revision.

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THE EQUITY DIVISION AND THE COMMERCIAL LIST

From 1987 to 1998, separate Equity and Commercial Divisions existed within the Supreme Court of New South Wales. The Commercial Division superceded an earlier Commercial List in the Common Law Division of the Court1. The business formerly assigned to the Commercial Division is now assigned to Equity and managed in the Commercial List2.

In the original version of this paper, Einstein Q.C. observed, ‘One may be pardoned in 1996 for having some difficulty in discerning which sets of proceedings are appropriately brought before the Equity Division and which before the Commercial Division. In large measure this is because many suits may be brought in either Division – and proceedings are, or course, transferred occasionally between Divisions.’

There are some important distinctions between the practice which generally applies in Equity and that which applies in the Commercial List. A general understanding of which cases ought properly be commenced in the general jurisdiction of the Equity Division or in the Commercial List may be gleaned from the considerations set out in the following pages.

The Equity Division

The history of the Equity Division and its origins with the creation of the Court of Chancery have been traced by Sir Frederick Jordan, Chief Justice of New South Wales from 1934 to 19493. The present constitution of the Division is set out in the Supreme Court Act 1970 and the Supreme Court Rules (SCR).

The business assigned to the Equity Division includes proceedings within the general equitable jurisdiction of the Court4, proceedings under a large number of specified Acts5, protective

1 See Supreme Court Act 1970, section 56 (repealed by the Supreme Court (Commercial Division) Act 1985 with

effect from 1 January 1987).

2 Supreme Court Rules (Amendment No 322) 1998, Gaz 117 of 7 August, 1998, p. 5985.

3 Sir Frederick Jordan, Select Legal Papers, Legal Books Pty Limited 1983, chapter 1 topics ii-iv.

4 Supreme Court Act, section 53(2).

5 SCR Part 12, rules 5 & 7, and Part 77 – now UCPR rules 1.16, 1.19 and 1.20

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business6, certain proceedings relating to infants7 and adoption8, intellectual property cases9, proceedings in the Commercial List10, the Technology and Construction List11, the Corporations List12, and proceedings previously within the jurisdiction of the Admiralty13 and Probate14 Divisions. Specific rules relating to these separate topics are not dealt with this paper.

Some of the commonest actions conducted in the Equity Division concern contractual disputes, applications for discretionary remedies such as injunctions, specific performance, appointment of receivers, vendor-purchaser disputes, fraud (both "common law" and "equitable"), intellectual property disputes, company related proceedings, proceedings relating to minors, actions for specific performance of contracts, the execution of trusts, the dissolution of partnerships, the administration of estates and the rectification or setting aside or cancellation of deeds and written instruments. Proceedings under the Real Property Act 190015 and the Family Provision Act 198216 are among those explicitly assigned to Equity. Proceedings under the Conveyancing Act 1919 and under the Trustee Act 1925 are usually commenced in Equity.

The Judges of the Equity Division also have the experience and ability to determine cases of the types sought by the Supreme Court Act and Rules to be channelled to the Commercial Division

6 SCR Part 76.

7 SCR Part 69.

8 SCR Part 73.

9 SCR Part 81 – now UCPR rule 1.16 and Schedule 8, Part 2

10 SCR Part 14. – now UCPR rule 45.6

11 SCR Part 14A. – now UCPR rule 45.7

12 Proceedings under the Corporations Act 2001 (Cth) and related legislation are assigned to the Equity Division by

the combined operation of the Corporations (Ancillary Provisions) Act 2001 (NSW), section 10, the Corporations

(New South Wales) Act 1990 (NSW), section 51, and SCR Part 12, rule 5(a)(xxxi) [now UCPR rule 1.16 and

Schedule 8] which provisions also support the operation of the Corporations Law Rules.

13 Supreme Court Act, Sch. 4, cl. 10(1)(a).

14 Supreme Court Act, Sch. 4, cl. 10(1)(d).

15 SCR Part 12, rule 5 – now UCPR rule 1.16 and Schedule 8, Part 1

16 SCR Part 77, rule 54. – now UCPR rule 1.16 and Schedule 8, Part 1

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before the 1998 amendments. On some occasions a Judge of the Equity Division used to sit as a Commercial Division Judge or vice versa, or be transferred from one Division to the other. The 1998 amendments have enabled better use to be made of the commercial expertise of the Equity Judges.

The Equity Division does not hold itself out as specializing only in the resolution of commercial transactions or as offering the commercial community expedition as a matter of course in bringing proceedings to a swift hearing. This is not to say that the Equity Division cannot, where need be, move just as expeditiously in its general jurisdiction as in the Commercial List, or as any other division17. However, the Equity Division has a set procedure for handling applications for expedition and expedition Judges are appointed on a rotating annual basis. The Division currently also operates on the general approach, which may be departed from as necessary, that the Judge who grants expedition will then proceed to hear the expedited case.

The Commercial List

Proceedings ‘arising out of commercial transactions’ or ‘in which there is an issue that has importance in trade or commerce’ are assigned to the Equity Division and may be entered in the Commercial List unless they are specifically excluded or assigned elsewhere by the Rules18.

The concept of a special list to deal with commercial cases in the ordinary courts of general jurisdiction may be traced to the 1895 Promulgation by the Judges of the Queens Bench Division, which provided in part that the newly created Commercial Causes List was to deal with

"Commercial causes (including) causes arising out of the ordinary transactions of merchants and traders; amongst others, those relating to the constructions of mercantile documents, export or import of merchandise, affreightment, insurance, banking and mercantile agency, and mercantile uses."

17 Cf Giorgi v European Asian Bank AG (unreported, Supreme Court Equity Division 3 March 1996) where

McLelland J made the point that given the powers contained in Part 26 of the Rules, it is not to be presumed that

proceedings will necessarily be dealt with more expeditiously in one Division than another.

18 SCR Part 14, rule 1 – now UCPR rule 45.6

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This is a narrower formulation in some respects than the modern concept of a commercial case19. The modern rule is more liberal. The concept of ‘commercial transactions’ accommodates the ‘evolving needs of the mercantile community’ and changes in the nature of ‘the commercial activities of the community’20.

Almost immediately upon the creation of the new Commercial Causes List the Court of Appeal had occasion to consider the purposes of the list. In Baerlein v Chartered Mercantile Bank [1895] 2 Ch 488 Lindly LJ said inter alia:-

"The commercial court has no more power to dispense with strict evidence, or to depart from the administration of the law in the ordinary way, than any other judge or court ... If in a particular case the court is satisfied that the judges having peculiar knowledge of commercial matters and habitual practice in dealing with commercial matters and habitual practice in dealing with commercial documents and correspondence with commercial men will greatly facilitate the trial of that particular case, that is a reason for a transfer ... [T]his case is likely to be fixed far better, far more quickly, far more economically and far more advantageously in every sense if it comes before a judge who has special skill and knowledge as to transactions of this nature, than if it keeps its place in one of the general lists."21

MacFarlan J pointed out that the object of the establishment of the commercial court in England

was that it should provide a forum for the litigation and resolution of disputes between

merchants and traders who desired and were prepared to accept an early opportunity of having

their disputes decided22.

19 Contrast the wording of SCR Part 14, rule 1, quoted in part earlier, which was based in turn on the former section

56 of the Supreme Court Act.

20 TSF Engineering Pty Ltd v Hill [1980] 2 NSWLR 105, 109; cf. Challenge Bank Ltd v Raine & Horne Commercial

Pty Ltd (1989) 17 NSWLR 297 and other cases cited in Ritchie’s Supreme Court Practice NSW [14.1.1].

21 [1895] 2 Ch 488 at 493-494.

22 Witten v Lombard Australia Ltd (Supreme Court of NSW, Commercial Division, 25 May 1967).

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The powers of the Court for the purpose of achieving a speedy determination were referred to by Moffitt P (with whom Glass JA agreed) in Stanley-Hill v Kool [1982] 1 NSWLR 460 at 461-462. The commercial list Judge was said to be

"in a position to discern from the detail of what passes before him any tactical manoeuvre which seeks to exploit the ordinary procedures or rules of evidence and thereby directly delay or prevent the determination of the real question in dispute or thereby indirectly do so by subjecting the opposing party to the pressures of delay or expense. Accordingly, he is in a superior position to decide by what directions or orders any such manoeuvre can be neutralized and how best the true issue can be fairly determined with expedition."

Section 76A of the Supreme Court Act now also explicitly provides that ‘the Court [in any Division] may from time to time, give such directions as the Court thinks fit (whether or not inconsistent with the Rules) for the speedy determination of the real questions between the parties to civil proceedings’23

The duties incumbent upon legal advisers was emphasized by Rogers CJ Comm. Div.:-

"The rules of court are structured to enable the judge in charge of the list to exercise his wide powers to ensure that the matter comes on with the greatest possible despatch, shorn of unnecessary side issues not truly in issue, but with all matters that are in issue clearly and readily tenderable. The judge's statutory obligation to provide a speedy determination cannot be discharged, if the parties fail to bring an action into the list at the time dictated by the rules, or fail to adhere to the directions, whether contained in the rules or given in the specific case from time to time by the judge. In other words, the somewhat special service provided by the court was intended to be available only to those who in turn complied with the requirements, insofar as they were called on to act. I appreciate that, with the exception of commercial organisations with their own legal departments, lay clients do not have any appreciation or understanding of their obligation. This merely reinforces the very heavy duty which the legal advisers owe, both the court and

23 Now see Civil Procedure Act 2005, section 61(1)

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their clients. If they fail in the discharge of their obligation to comply with the rules and orders expeditiously, it will be the client that will suffer. As it is, the court can look only to the legal advisers."24

Case Management The filing fee for an initiating process for entry in the Commercial List is more than twice the

normal fee. The difference throws light on rationale for the different approaches adopted to case

management.

The Commercial Division provides a Judge to "case manage" each proceeding at regular

intervals (noting that the Court endeavours to limit the number of directions hearings to the

minimum necessary), from the first return of a Summons until the final hearing. Thus

practitioners conducting proceedings in the Commercial Division will be required:

(a) On the first return of the Summons, to identify the issues perceived to arise in the

proceedings. These will usually be transcribed and noted by the Court. In the fullness of

time, subject to changes to the issues being communicated to the Court (and appropriate

leave being granted to add new issues and to make associated amendments to the so-called

"pleadings"25), parties will be held to the issues so identified.

(b) On the first return of the Summons, to agree, or failing agreement, submit to a directions

timetable which will usually include a date when the matter will next be before the Court for

further directions and mention.

24 TSF Engineering Pty Ltd v Hill [1980] 2 NSWLR 105 at 303.

25 Although proceedings before the Commercial Division are commenced by summons, the form of the summons is

calculated to identify the claims made, the nature of the dispute, the issues likely to arise and a summary of the

plaintiff's contentions. Thereafter the defendants will usually be required to "plead" to the plaintiff's contentions.

The whole exercise is aimed at shortly identifying the real and substantive issues sought to be litigated and the court

is astute to examine carefully and prevent any attempt to set up false, specious or time-wasting issues.

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(c) Thereafter to bring promptly to the Court's attention any failure to comply with previous directions and any changes to information previously communicated to the Court of any description, including new issues sought to be raised and questions of estimated time required for hearing, discovery issues, the progress of Statement preparation and the like. In other words, the Court keeps a close eye and hand upon the proceedings at regular intervals.

(d) When the Court sees it as appropriate the matter will be allocated a hearing date26. On occasion27 the further timetable of directions will be worked in to suit a hearing date allocated.

The Equity Division in its general jurisdiction only case manages a suit at Judge level:

(a) where the suit approaches hearing, at which time the Judge to hear the suit will hold a pre-trial directions hearing,

(b) where a particular case warrants special treatment by way of case management, e.g. because of unusual complexity or the number of parties involved,

(c) where a party specifically has the matter listed for directions before a duty Judge,28

(d) where a matter has received an order for expedition.

26 Such date may, in an exceptional situation, be given on the first return date of the Summons, usually such a date

will be given when the court deems it appropriate having regard to such considerations as readiness for trial, likely

issues and estimated hearing time required.

27 This would not be the usual procedure but could be appropriate in a particular situation.

28 Hence the court leaves it to the parties to adopt a measure of self-help in bringing a matter into the duty judge's

list for directions at appropriate stages if required.

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PRACTICE IN THE EQUITY DIVISION

Practice in the Equity Division is governed by the Rules and by Practice Note 43 (expedition list) and paragraphs 8 and 9 of Practice Note 46 (pre trial directions hearings)29. A procedural table is printed at the end of this paper.

Commencement of proceedings Different procedures apply to proceedings commenced by statement of claim and proceedings

commenced by summons. Most equity actions are commenced by summons. In general, the

plaintiff has the option of commencing by summons or statement of claim.30

A summons is appropriate where the main issue is one of construction, or where there is

unlikely to be a substantial dispute of fact31, but plaintiffs choose their originating process for

tactical reasons, and many actions commenced by summons involve significant factual disputes

and complex legal issues other than matters of construction.

An action must be commenced by statement of claim if the plaintiff claims relief mentioned in

SCR Part 4 sub-rule 2(1)32, including relief in respect of a trust not express and wholly in writing,

or possession of land, but the plaintiff’s choice of originating process is effectively restored if the

plaintiff claims any relief mentioned in sub-rule 2(2)33, including a declaration of right, an

injunction, appointment of a receiver, orders relating to pre-trial preservation of property or relief

for trespass to land.

The court has power to order that an action commenced by summons continue on pleadings34

or that the issues be defined by pleadings.35 In the former case, all of the procedural rules

29 Now see Practice Note SC Eq 1

30 SCR Part 4, rule 3 – now UCPR rules 6.3 and 6.4

31 SCR Part 4, rule 3 – now UCPR rule 6.4

32 UCPR rule 6.3

33 UCPR rule 6.4(2)

34 Part 5, rule 11. – now UCPR rule 6.6(2)

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applicable to actions commenced by statement of claim are engaged, including the requirement

that evidence at trial be given orally rather than by affidavit36. In the latter case, the action is still

governed by the procedures applicable to actions commenced by summons and evidence at

trial is given by affidavit37 unless the Court otherwise orders38.

Every summons issued since 16 June 2003 must state a return date39. Unless a specialist list is

nominated, the summons will be returnable in Court 7A in the Registrar’s 9:30 a.m. directions

list, and will continue to be case-managed in that list until it is ready to be set down in a list for

hearing.

Absent special orders, a summons must be served at least five clear days before the return date

and, if it is to be served outside New South Wales, the return date cannot be less than one

month after the date of filing40. The Registry will usually comply with a request for a particular

return date for a summons or notice of motion, provided that the requested date gives sufficient

time for service of the document in accordance with the Rules, and, if the summons or motion is

to be heard in a particular list, the requested date is appropriate for that list.41

If the summons or statement of claim makes a ‘claim for damages’, the solicitor must file with it

a certificate of reasonable grounds in terms of sections 198J and 198L of the Legal Profession

Act 198742. This also applies to subsequent pleadings of any party or other ‘court

35 Part 5, rule 7.

36 Part 36, rules 1 & 2 – now UCPR rule 31.1(2). The Court also has power to direct that oral evidence in chief or in

cross-examination be taken by ‘any audio-visual method or by telephone’: rule 2A. – now UCPR rule 31.3(1)

37 Part 36, rule 3 – now UCPR rule 31.1(1)

38 Part 5, rule 7 – now UCPR rule 31.1(3) and (4)

39 Part 5, rule 3. – now UCPR rule 6.15(1) Plaintiffs previously had the option of filing a summons without

appointment for hearing and thereby engaging a default timetable under Practice Note 63.

40 Part 5, rule 3. – now UCPR rule 6.15(3)

41 E.g., the Registrar’s 9:30 directions list and the 11 am corporations list are generally heard every business day

except Wednesdays.

42 Now see sections 345 and 347 of the Legal Profession Act 2004

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documentation’ in terms of section 198L. Counsel must not act without the requisite belief in

terms of section 198J. ‘Claim for damages’ is not defined in the Act. It is not unusual to find

common law claims for damages in the Equity Division combined with claims for equitable relief

and Chancery itself had power in some cases to award damages,43 but most purely equitable

claims are not of that nature. Whether the certification requirement applies to a particular

document in Equity proceedings depends on the characterization of the claims being made or

resisted.

Urgent and interlocutory relief If urgent interlocutory relief is necessary, the action is usually commenced by summons. One

must always consider the nature and elements of the cause of action before commencing, but it

is unwise to plead the cause in haste; it is usually better in an urgent case to put the evidence

and prayers for relief before the Court and then to draft a considered pleading, if pleadings are

required.

The summons may contain prayers for interlocutory as well as final relief, and if so, it must be

endorsed with a statement showing which relief is sought on an interlocutory basis. The

alternative procedure of filing a notice of motion with the summons or statement of claim is

regular but less convenient.

If the normal time for service or return of the summons under the Rules is too long, an

application should be made to the duty Judge for abridgement of time. The application is made

by attending before the duty Judge with the summons to be filed, supporting affidavits showing

the grounds for short service as well as the basis for the action, and draft orders providing for

service of the documents (summons, affidavits and notice of the orders) on the defendant by a

particular time. It may also be appropriate to seek orders concerning the permissible method of

service44 or other matters, which should be included in the draft orders. The solicitor should be

43 See the discussion in McDermott, Equitable Damages, Butterworths 1994.

44 E.g. by fax, on solicitors for the defendant, &c.

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equipped with the filing fee to be paid in the Registry; failing that, the solicitor must give a

personal undertaking.

If the plaintiff seeks ex parte relief, the application is made before the duty Judge. The

procedure is the same as on application for abridgement of time, save that the plaintiff must

prove its case for ex parte relief and comply with the strict standards of frankness and

disclosure which such an application requires. Counsel should have instructions to give the

usual undertaking as to damages. If such relief is granted, the summons is usually made

returnable before the duty Judge at an early date.

If ex parte relief is not sought or is denied but the plaintiff claims interlocutory injunctive relief,

the correct procedure will be dictated by the circumstances of the case and the attitude of the

parties.

At the most urgent end of the spectrum, the plaintiff’s solicitor will notify the defendant or the

defendant’s solicitor that the plaintiff will approach the duty Judge at a particular time to seek

immediate interlocutory relief. Such an application will necessarily include abridgement of time

limits and an order that the summons be made returnable instanter. It is essential that the

defendant be given copies of the material on which the plaintiff intends to rely (summons, draft

orders, affidavits) as early as possible. The plaintiff’s evidence is likely to be limited and the

defendant’s non-existent. In a case of unusual urgency, a party may even be allowed to adduce

oral evidence before the duty Judge. If the Judge considers it proper to grant an injunction on

such short notice, the usual practice is to enjoin the defendant until a specified time and date

rather than ‘until further order’. This allows the defendant time to mount a proper defence to the

plaintiff’s claim for interlocutory relief and protects the plaintiff in the interim. The duration of

such interim injunctions is usually co-ordinated with further listing dates before the duty Judge;

thus it is common to specify that the injunction shall expire at 4 p.m. on such a date. Many such

claims for interim protection are resolved by negotiation between the parties resulting in short-

term undertakings to the Court in lieu of an injunction.

There are any number of gradations of urgency and circumstance in cases where interlocutory

relief is sought. If the plaintiff seeks interlocutory relief ‘until further order’, i.e. until the

determination of the action, the Court will set short timetables for filing and service of evidence,

for other preliminary steps such as the return of subpoenas and notices to produce, and for the

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hearing of the interlocutory application. This aspect of case management is likely to be

conducted by the duty Judge or expedition Judge. The case may be stood over from time to

time in the same list or before the same Judge, or be transferred to the Registrar for further

management. Otherwise, directions preparatory to an interlocutory hearing may be made by the

Registrar.

In some cases it is possible to avoid the cost and extra court time of a contested interlocutory

hearing by expediting the substantive action and/or setting an early trial date. This course may

be suggested by one or both of the parties, or by the Court itself. The perceived advantages for

either or both parties vary from case to case. For example, a plaintiff who has good prospects

of obtaining an interlocutory injunction may be advantaged by pressing for an interlocutory

hearing and a longer timetable to enable thorough preparation for the trial if commercial realities

suggest that an interlocutory judgment is likely to determine the practical outcome of the

dispute; conversely, the defendant in such a case may press for an early trial date and offer

undertakings in lieu of an interlocutory injunction.

The guiding principle applied by the Court remains one of justice to both parties, and the Court

may mould its procedures to the exigencies of a particular case.

Expedition Practice Note 43 describes the practice of the Equity Division relating to expedition.45

Applications for expedition are made by motion returnable any Friday before the expedition

Judge. The application must be made promptly once the need for expedition becomes apparent.

If it is clear at the outset that an urgent final hearing will be required, a claim for expedition

should be filed in or with the summons. Affidavits in support of the motion for expedition should

set out the facts giving rise to the need for urgent final hearing in priority over other cases in the

Court’s list.

45 Now Practice Note SC Eq 1

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The practice is that the Judge who grants expedition also manages and hears the case. Case

management takes the form of successive directions hearings. Directions may be expected to

include matters such as exchange of affidavits or witness statements, notification of objections,

and preparation of bundles of documents for tender.

Discovery and interrogatories

The general rule was that a party may interrogate as of right in a pleaded Equity case, subject to the limits in Part 24 rule 1. A notice to answer up to 30 actual questions could be served after the close of pleadings until two months before call-over. The Court retained a general power to order46 or disallow47 interrogatories, and a party who wants to interrogate in an action without pleadings, or who wants to interrogate outside the as-of-right limits in a pleaded case, must obtain an order. [Under the UCPR, interrogatories are only available by order: see UCPR Part 22.]

Discovery and consequent inspection of documents are no longer available as of right in Supreme Court actions. Present practice requires the party seeking discovery to formulate classes of documents for discovery and to seek the agreement of the discovering party or an order for discovery under Part 23 rule 348. Categories for discovery are commonly formulated by reference to their relevance to particular facts in issue in the proceedings and/or by reference to the nature of the documents, which may include their age and provenance.

Discovery may be sought in all actions, whether pleaded or not. Former Practice Note 64, paragraph (8) observed that ‘discovery should rarely be necessary [in actions commenced by summons] because actions involving substantial disputes of fact will normally be commenced by statement of claim’. It may also be argued that pleadings better define what facts are really in issue. Nevertheless, most litigants manage to agree on categories for discovery, whether their

46 Part 24 rule 5.

47 Part 24 rule 3.

48 UCPR rule 21.2

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actions are pleaded or not; and if the matters in issue are unclear, the remedy is to order pleadings, not to refuse discovery.

Part 23 rule 249 permits one party by notice to require another to produce for inspection up to 50 relevant, non-privileged, identified documents. In effect, this is inspection without discovery, for the list of documents is produced by the inspecting party. It differs from production on notice to produce or on subpoena in that the documents are produced between the parties, not to the Court.

Evidence of witnesses

Because most Equity actions are commenced by summons, evidence in chief of witnesses at trial is usually given by affidavit.50

In an action commenced by statement of claim or continued on pleadings, evidence in chief at the hearing is to be given orally, subject to any contrary direction.51 The Court may, of course, make orders for the filing and service of affidavits containing all evidence in chief in a pleaded case52. The Court also has power to order the exchange of witness statements under Part 36, rule 4A53. The maker of the statement must still be called as a witness, but the rule contemplates that the statement may be tendered as all or part of the witness’s evidence in chief, and it prohibits the adducing of evidence the substance of which is not included in the statement without the leave of the Court. This accords with the general practice in the Commercial List54 and formerly in the Commercial Division.

49 UCPR rule 21.10

50 Part 36, subrules 3(2), 2(1) and the definition of ‘trial’ in rule 1 – now UCPR rule 31.1

51 Part 36, rules 1 and 2, UCPR rule 31.1(2)

52 UCPR rule 31.1(3)

53 UCPR rule 31.4

54 See the Usual Order for Hearing in Practice Note 100 – now Practice Note SC Eq 3

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The Court also has power to order or permit oral evidence in an action commenced by summons55 - a power which may be used e.g. in the case of an unwilling witness who will not make an affidavit voluntarily.

Directions and setting down for trial Procedural directions in an action commenced by summons are controlled by the Registrar, or

by the duty Judge or Master if the action finds its way into his or her list and is not returned to

the Registrar’s list. When the action is ready, the Judge, Master or Registrar will enter it in a list

for hearing.

If procedural or other interlocutory orders are required in an action on pleadings, the moving

party files and serves a notice of motion made returnable before the Registrar. Depending who

has jurisdiction to grant the relief sought, the motion will be referred to a Judge or Master or

heard by the Registrar.

Formerly, any party in a general Equity action on pleadings could file and serve a notice to set

down for trial once the pleadings had closed56. This made the action returnable before the

Registrar in the 9:30 list57 when the Registrar will deal with any outstanding procedural matters

and, if it is ready, assign the case to a list for hearing. These provisions for setting down do not

apply in the Commercial List or the Technology and Construction List, which have their own

procedures, nor do they apply in practice to expedited cases because they are managed directly

by the Judge who is to hear them.

In considering whether an action is ready to be entered in a list for hearing, it is necessary to

consider what directions should be made concerning the final preparation of the case, including

(as may be appropriate) the notification, preparation and exchange of documents for tender,

55 Part 5, rule 7.

56 Part 33, rule 5. If the defendant does so, an affidavit should also be filed deposing to the date of service of the

defence in order to demonstrate that the pleadings are closed. See Ritchie’s Supreme Court Procedure, [16,320].

57 See Ritchie’s Supreme Court Procedure, [16,320].

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notification of objections, preparation of chronologies, outlines of submissions and documents

for the Judge. This is particularly important if the case will be entered in the One Day List or the

Masters’ List (see below). Matters in the Masters’ List are usually not subject to further pre-trial

directions.

There is no provision for jury trial in Equity, nor for hearing outside Sydney. However, in an

appropriate case, a Judge may sit outside Sydney, and any application in that behalf should be

made to the Judge listed to hear the case at the earliest opportunity.

Lists for hearing

Apart from the expedition list, there are effectively three non-specialist lists for hearing in the Equity Division.

One Day List From 2004 onwards the Short Notice List has been suspended and the practice which applied

to that list has ceased.58 Cases with a hearing time estimated to be a day or less are now put

into a One Day List by the Registrar.

The One Day List is called over by the expedition Judge at least once a month, usually on the

last Friday of the month. At callover, the expedition Judge will fix cases for hearing before a

Judge (the expedition Judge will not necessarily be the trial Judge for cases in the One Day

List) and will seek the parties’ acceptance that the trial Judge will ration time if necessary to

ensure that the matter concludes in one day. If no such acceptance is forthcoming, the matter

may be placed in the next General List callover. [From 3 September 2007 the former call over

for one day matters (short matters) has been abolished, so that hearing dates will be allocated

by registrars, usually at the registrar’s directions hearing.]

The trial Judge may direct that there be a pre-trial directions hearing.

58 Practice in the Short Notice List was governed by Practice Notes 46, paragraphs 1 to 7, which have not been

formally withdrawn. See also Practice Note 93 in relation to short pro bono cases. – now see Practice Note SC Eq 1,

cl 46-49, Short Matters List.

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General list The general list for hearing covers other actions for hearing by a Judge. After an action is

placed in this list, the Court will give the parties notice of a callover before the Registrar. If the

action appears ready for hearing the Registrar will fix a provisional date for hearing and, about

four weeks in advance, a pre-trial directions hearing before the trial Judge59 to be attended by

counsel who is to conduct the case.

The purpose of the pre-trial directions hearing is to confirm that the action really is ready for

hearing, to identify matters which could affect its readiness (as to which counsel has a duty of

frank disclosure) and make any appropriate directions. If the action does not appear ready, it

may lose the hearing date. The pre-trial directions hearing is a last opportunity to order

exchange of objections to affidavits, exchange of witness statements and expert reports,

preparation of bundles of documents, statements of issues and to deal with preliminary matters

arising under the Evidence Act.60

Associate Judges’ List

Actions which may be heard by an Associate Judge are referred by the Registrar to the Associate Judges’ callover. A Judge or the Court of Appeal may also refer the whole or part of an action to an Associate Judge for hearing.61 An Associate Judge conducts a callover approximately once a month. At each callover the Associate Judge will list matters, usually Family Provision Act applications, in a running list which will be for one week in the relevant period.

Practice concerning affidavits and documents filed in Court

Useful precedents for Equity pleadings and court documents may be found in Nevill and Asche, Equity Proceedings with Precedents (New South Wales) (Butterworths, 1981), still an excellent resource despite its age, also the classic English work, Atkin's Encyclopaedia of Court Forms in

59 Practice Note 46(8) – now Practice Note SC Eq1, cl41.

60 Practice Note 46(9).

61 SCR Schedule D, Part 3, paragraph 4.

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Civil Proceedings, a copy of which is held in the Bar Library, and the LexisNexis looseleaf/online service, Court Forms, Precedents and Pleadings — New South Wales.

Most evidence in chief in the Equity Division is given by affidavit. The Rules relating to affidavits

are the same in all Divisions. Practitioners should be aware of the following rules and practice,

mainly concerning affidavits and documentary evidence.

o Documentary evidence to be tendered through or otherwise used in conjunction with an

affidavit may be exhibited or annexed to the affidavit. Practitioners must be familiar with

SCR Part 38 rule 462, which deals with this topic.

o Exhibits are physically separate from the affidavit and are not filed in Court. They are

identified by attachment of a certificate signed by the person before whom the affidavit is

made. Exhibits may be original or, more usually, copy documents; if copies have been

exhibited to affidavits, originals may be tendered at trial if necessary. Each exhibit must be

produced and shown to the deponent at the time of making the affidavit (hence the

traditional form of words referring to an exhibit in the body of the affidavit, ‘now produced

and shown to me and marked [ ] is [ ]’). Copies of exhibits must be served on each

adverse party or the exhibits must be produced for inspection in accordance with Part 38

rule 4(6)63. Subject to other arrangements for the provision of documents in advance to the

Judge who is to hear a case, copies of exhibits should generally be delivered to the Judge’s

chambers within two days before an expected hearing to enable perusal prior to tender.

o Annexures are copy documents which are physically part of the affidavit. They are identified

by a certificate endorsed on the annexure (and not on a separate page) signed by the

person before whom the affidavit is made The requirement that all pages of an affidavit be

consecutively numbered includes the annexures.64 Formerly, an affidavit which, including its

annexures, exceeded 50 pages in length could not be filed without leave of the Court.

62 UCPR rule 35.6

63 UCPR rule 35.6(6)

64 SCR Part 65, rule 3 – now UCPR rule 35.6(3).

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o The page limit for affidavits was introduced in 1997 to combat a practice which had

developed of filing thin affidavits with fat annexures, creating archival difficulties for the

Registry and practical difficulties for the Judges when counsel expected them to navigate

between badly organised affidavits, annexures and separately tendered documentary

evidence. That practice was always incorrect. The former Part 38 rule 4 permitted

annexures only ‘where convenient’, but for obvious reasons this was difficult for Registry

staff to enforce. The point to be drawn from this is that documentary evidence must be

intelligently presented with a view to the way in which it will be presented and managed at

trial.

o A well compiled, paginated and indexed bundle of documents greatly assists the conduct in

Court of a case involving complex or voluminous documentation. If the most logical

arrangement would integrate evidence tendered through multiple deponents, it is good

practice to create a separate binder or Judge’s book of documentary evidence organized

chronologically, and sometimes also by subject matter, rather than by deponent. This

allows the documentary evidence to be managed independently of the order in which it is

tendered. The index and contents should be agreed between counsel in advance, if

necessary retaining the right to object to the tender of particular items. Sufficient copies

should be printed for the Judge, a witness, and each of the parties’ legal representatives.

o Witness statements do not create the same archival problems as affidavits because they are

tendered as exhibits, and therefore returned after trial. Care must still be taken to ensure

that documentary evidence is manageable and is intelligently presented to the Court.

o An affidavit deposing to service of an affidavit should not annex a copy of the affidavit

served, but should either exhibit that affidavit or (more conveniently) include a sufficient

description of it.65

o Under the SCR66 affidavits were to be filed in the Registry at least two clear days before the

proceedings were next before the Court. They should be indorsed in the top left margin

‘BEFORE THE COURT ON [DATE]’. An unfiled affidavit may not be used without leave.67.

65 Part 38, rule 7A. – now UCPR rule 35.8

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o The Rules do not provide for notices for discovery, lists of documents, notices to answer

interrogatories or answers to interrogatories to be filed; these documents should be served

but not filed. They may be tendered if it is necessary to rely on them.

o Every document filed in Court presents an opportunity to create an impression of

competence and reliability. A responsible solicitor should personally proof-read all affidavits

and other documents to be filed in Court for both form and content, including

i) grammatical sense, spelling and syntax,

ii) correct date marking of affidavits,

iii) pagination, and

iv) compliance with the rules of evidence.

o The personal engagement of litigants can lead to their insisting that assertions of marginal

relevance be included in their affidavits. Legal practitioners are personally responsible for

the content of evidence filed in Court. This responsibility can be tested by asking one’s self,

‘Would it be proper to ask this question at the hearing? Would it be proper to tender this

evidence?’ Counsel also have a professional duty to ensure that affidavits do not include

scandalous or irrelevant material. Counsel conducts the client’s case, and not the client. It

is right to consider the client’s opinion about the conduct of a case, which may sometimes

change ones’ own, for none of us is infallible; but if the client insists on a course that would

insert evidence in an affidavit which one ought not adduce at hearing, counsel must resist

the client’s instructions.

66 UCPR rule 35.9 now requires affidavits not to be filed unless filed in accordance with the rules, a Practice Note or

by leave. Practice Note SC Gen 4 – affidavits requires delivery of a “tender bundle” of documents to be relied upon,

including affidavits, at least 48 hours prior to a scheduled hearing

67 Part 38, rule 6.

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PRACTICE IN THE COMMERCIAL LIST

Practice in the Commercial List is governed by SCR Part 14 and Practice Note 10068, which prevail to the extent of inconsistency with general Equity and Supreme Court practice.69 A table of time limits under the Usual Order for Hearing is printed at the end of this paper.

The Commercial Division of the Supreme Court was established on 1 January, 1987. From its

inception, proceedings in the Division were governed by Practice Note 39, which was made in

express reliance on the power of the Court under section 76A of the Supreme Court Act to give

directions which may override the Rules “for the speedy determination of the real questions

between the parties to civil proceedings”. In 1988 the business of the Construction List in the

Common Law Division came under the administration of the Judges of the Commercial Division,

who applied a generally similar approach to both classes of litigation. Practice Notes 39 and 58

(Construction List) were reviewed and replaced with effect from 25 March, 1996, by Practice

Note 89 (Commercial Division and Construction List). Practice Note 89 was referable to the

authority and ethos of section 76A, and to the extent of any inconsistency it prevailed over the

Rules. The jurisdiction of the Commercial Division was effectively transferred to the Equity

Division by the repeal and replacement of the former SCR Part 14 with effect from 1 September,

1998. The previous practice of the Commercial Division continues in the Commercial List by

virtue of Practice Note 10070, which substantially reproduces the relevant provisions of Practice

Note 89.

Jurisdiction

As noted above, proceedings which

a) arise out of commercial transactions, or in which there is an issue that has importance in trade or commerce, and

68 UCPR rule 45.6 and Practice Note SC Eq 3

69 Authorised by the Supreme Court Act, sec. 76A – now Civil Procedure Act, sec.61(1).

70 Now Practice Note SC Eq 3

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b) are not otherwise specifically assigned to the Court of Appeal, to the Equity Division or to any other nominated Division other than Common Law

are assigned to the Equity Division and may be entered in the Commercial List subject to the provisions of Part 14.71 Also assigned to the Commercial List are the majority of non-construction related appeals against awards under the Commercial Arbitration Act 1984.72

Commencement Proceedings in the Commercial List are commenced by summons in a special form73 which

incorporates a statement of issues and contentions and specifies a return date. One should

usually draw the contentions so as to include the allegations that would be necessary in a

statement of claim, while avoiding any temptation to prolixity, and to describe the relevant facts

without the need strictly to observe the distinction between material facts and merely evidentiary

facts. The summons provides an opportunity to present the plaintiff’s case clearly and

persuasively.

The summons and defence in Commercial List proceedings are ‘court documentation’ in terms

of section 198L of the Legal Profession Act 198774. The belief and certification requirements of

sections 198J and 198L75 apply if that document contains or resists a ‘claim for damages’.

The summons must be served five days before the return date.76 If this cannot be done, a fresh

return date should ordinarily be obtained from the Registry or on the first or a subsequent return

date before the Court from the presiding Judge and the summons amended accordingly.

71 SCR Part 14, rule 1 – now see UCPR rule 45.6.

72 SCR Part 72A, r. 1A; cf. Part 14, r.4 – now UCPR rules 1.16 and 45.8, Schedule 8, Part 1.

73 Practice Note 100, cl. 6 and Annexure 1 – now Practice Note SC Eq 3, cl 8

74 Now see section 347 of the Legal Profession Act 2004

75 Now see sections 345 and 347 of the Legal Profession Act 2004

76 Part 5, rule 4A(3) – now UCPR rule 6.15

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If urgent or ex parte relief is required before commencement or during the course of an action,

arrangements for hearing by a Judge should be made with the Commercial List Clerk (tel. 9230

8661 or 9230 8081), or if the Clerk is unavailable, with the Associate to the Judge administering

the Commercial List.77

Directions Proceedings in the Commercial List are managed by directions hearings. These are usually

conducted by the Judge in charge of the List. The number of directions hearings is sought to be

kept to a minimum consistent with the ‘just, quick and cheap disposal of the proceedings’.78

Procedure at the first directions hearing is described in clauses 12 and 13 of the Practice Note79,

which respectively set out a checklist of matters of which the parties must be prepared to inform

the Court and give examples of the kinds of directions commonly made. The procedure is

flexible, the essential object of the first directions hearing being to identify the nature and scope

of the dispute, to determine whether the action is appropriate to be heard in the Commercial List,

to identify and refer appropriate questions under Part 7280, to identify and refer appropriate

cases for mediation, early neutral evaluation or other alternative dispute resolution, and to make

directions for those matters and for other interlocutory steps in preparation of the action for

hearing.

Directions are usually given at the first directions hearing for the filing of a defence and an

affidavit of facts and circumstances supporting the defence and any cross-claims. Common

directions include timetables for pleadings, particulars, exchange of experts’ reports,

77 Practice Note 100, clause 19 – now Practice Note SC Eq 3, clause 34

78 Practice Note 100, clause 14; SCR Part 26, rule 1 – now Practice Note SC Eq 3, clauses 22 and 24, UCPR rule 2.1

79 Practice Note SC Eq 3, clause 24

80 Now UCPR Part 20, Division 3, rules. 20.13 – 20.24

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conferences of experts and service of affidavits or witness statements. At subsequent

directions hearings any remaining interlocutory matters can be dealt with.81

It is necessary for parties to be represented at directions hearings by practitioners familiar with

the action with sufficient instructions to inform the Court fully about the matter and with authority

to make admissions and/or concessions, and it is necessary for opposing practitioners to have

communicated with each other beforehand and prepared minutes of proposed directions

(whether or not by consent).82

The defence should ‘avoid formality’ and either ‘admit or deny the facts on which the plaintiff

relies’.83 The pleading that ‘the defendant does not know and cannot admit’ is not permitted in

the Commercial List, nor is it proper under general principles of pleading. Any necessary

additional facts should be properly pleaded and particularized, and the legal grounds for

opposition to the relief claimed should be identified.84 In truth, the principles set out in the

Practice Note differ little from those adopted by the best pleaders in any event.85

Practice Note 100 emphasises the role of alternative dispute resolution, reflecting the

developing practice of the Court.86 The Practice Note also requires that consideration ‘be given

throughout the course of proceedings to whether any questions are appropriate for referral to a

referee for inquiry and report’.87

81Practice Note 100, clause 14. – now Practice Note SC Eq 3, clause 24

82 Practice Note 100, clause 18 – now Practice Note SC Eq 3, clauses 32 and 33

83 Practice Note 100, clause 13(2) – now Practice Note SC Eq 3, clause 11

84 Idem.

85 The rule that a pleading should state the material facts, not mere conclusions of law, does not differ from

Commercial List practice, because the pleading should be so drawn as to correspond to a recognisable cause of

action, and in the case of a statutory cause of action should identify the statute.

86 Practice Note 100, clause 24 – now Practice Note SC Eq 3, clauses 42 - 44

87 Practice Note 100, clause 15 – now Practice Note SC Eq 3, clauses 28 - 31

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Discovery and interrogatories are not available as of right but may be ordered at a directions

hearing. If discovery is appropriate, the use of informal discovery or discovery limited to

particular issues or classes of documents should be considered.

Despite active judicial case-management, the parties to litigation are expected to sort out most

of their procedural differences themselves, and to refrain from making interlocutory applications

which are not directly conducive to bringing cases to trial on their merits. That said, liberty to

apply is always available by making appropriate arrangements with the other parties and the

Commercial List Clerk, and there is no need for any special direction to that effect.88 Strike out

applications and applications for summary judgment are seldom appropriate because of the

stringent and well-known criteria which the applicant must satisfy. This point receives special

mention in Practice Note 100, where practitioners are warned to ‘expect greater strictness in

declining to entertain such applications’89.

Setting down for trial A date for hearing may be fixed directly out of a directions hearing, whether or not interlocutory

steps have been completed; alternatively, cases may be referred to a call-over. Clause 20 of

Practice Note 10090 provides that proceedings will normally be listed at 2:00 p.m. on a Friday to

fix a hearing date; the current practice is to list a case for that purpose at 2:00 p.m. on the day

when in accordance with the directions the last step prior to hearing should be completed.91

When a date for hearing is fixed, the Court will direct to what extent the Usual Order for Hearing

(Annexure 3 to the Practice Note) shall be complied with.92 The provisions of that Order, or

88 Practice Note 100, clause 19(2) – now Practice Note SC Eq 3, clause 35


90 Now see Practice Note SC Eq 3, clause 37

91 E.g. if directions are made, say, on 29 March providing for the last step to be taken by Friday 30 June, and those

directions provide for all matters necessary prior to trial, it may be expected that on 30 June the action will be listed

to fix a hearing date.


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such directions as the Court may make in a particular case, govern inter alia the form and pre-

trial disclosure of evidence to be adduced at the hearing. Time limits under the Usual Order are

set out in a table at the end of this paper. The Court retains in each case a discretion to relieve

a party from the consequences of non-compliance with a time limit, but in commercial

proceedings it cannot be assumed that a time limit will be relaxed if resulting prejudice to

another party would justify deferral of the hearing.

Counsel are required to give a frank and sensible estimate of time when hearing dates are fixed.

If it subsequently appears that a case will run longer than the time for which it is listed, the case

is usually heard to its conclusion and not adjourned part heard.

Evidence of witnesses The evidence of witnesses is normally given in the form of expert reports and witness

statements.

Clause 1 of the Usual Order deals with expert evidence. Expert evidence must be in the form of

a report; primary expert reports must be served at least 28 days before trial93 and a purely

responsive expert’s report may be served up to 14 days before trial under the Usual Order, but

the Court often directs exchange of expert reports at an earlier stage. The Court has power to

direct a meeting of experts whose reports have been served with a view to facilitating resolution

of differences of understanding or opinion between them.

Clauses 2 and 3 of the Usual Order deal with the form of evidence from non-expert witnesses.

The Usual Order requires exchange of witness statements 28 days before trial unless (as is

often the case) earlier directions have already provided a timetable for the exchange of

statements or affidavits. The maker of the statement must still be called as a witness but, as the

Order contemplates, the witness statement is usually tendered as the whole or the major part of

93 This differs from section 177 of the Evidence Act, which permits service of an expert’s certificate up to 21 days

before the hearing, seven days later than the time provided for service of an expert’s report under clause 1(a) of the

Usual Order.

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the witness’s evidence in chief. The adducing of evidence, the substance of which is not

included in the statement, is prohibited without the leave of the Court.94

Witness statements and expert reports should be drawn in admissible form, numbered and

paginated in the same way as an affidavit. Copies of documents to be tendered through the

witness should be annexed, clearly numbered and paginated. It is good practice to number

annexures uniquely so that the same numbering can be used in the bundle of documents

without confusion.95

Objections to witness statements and expert reports must be served 14 days before hearing, or

in the case of expert reports in reply, seven days before hearing.96 The Court will expect

counsel to exercise professional skill and common sense not only in the manner of drafting of

statements, but also in the nature and extent of objections taken.

Documentary evidence If discovery has been ordered, paragraph 6 of the Usual Order imposes a continuing obligation

of discovery of documents coming into a party’s power, possession, custody or control, or

discovered, up to the time of trial, and requires in particular that a supplementary list of any such

documents be served seven working days before trial.

Paragraph 4 of the Usual Order requires exchange of lists of documents for tender at least 14

days before trial with an offer of inspection (if inspection has not already occurred). The list

should preferably be in a form that can readily be converted to an index to the corresponding

part or volume(s) of the bundle of documents. It should contain a number, non-contentious

description and date for each document, and may also give page numbers.

94 Sub-paragraphs 3(a) and (c)-(g) of the Usual Order substantially correspond with SCR Part 36, sub-rules 4A(2A),

(4), (5) and (8) with respect to witness statements – now UCPR rule 31.4

95 For example, the documents annexed to John Smith’s first witness statement may be ‘JS01’ to ‘JS25’, and the

annexures to his second witness statement may start at ‘JS26’.

96 Practice Note 100 - now Practice Note SC Eq 3, paragraphs 1(c) and 3(b).

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The party receiving a list then has seven working days to give notice in writing stating ‘(i) which

of the specified documents may be tendered by consent; (ii) whether the authenticity of any of

the remaining documents, and if so which, is disputed; and (iii) in so far as any document may

not be tendered by consent, the grounds for the objection to its tender’.97

Disputes about authenticity, although relatively infrequent, require an understanding of the

relevant provisions of the Rules and the Evidence Act.98

Objections to tendered documents should be co-ordinated with objections to witness statements

and expert reports, and should state grounds of objection briefly, e.g. ‘hearsay’, ‘form’, or

‘opinion’. The plaintiff (who will have to prepare an index to the bundle of documents for the

Court in any event) may find it convenient to copy the other parties’ lists of documents, whether

electronically or otherwise, and indicate objections in an additional column. The document so

created can be integrated into the index with little extra effort.

The Usual Order also requires a party to give notice 14 days before trial to require another party

to tender an original document, and a party intending to tender an original document must itself

give notice seven days before trial.99

97 Paragraph 4(2).

98 If there is doubt about the authenticity of a document to be tendered, its identity, or the conclusions relevant to

admissibility or to a ‘previous representation’ which may be drawn from it having regard to its nature, author,

provenance, etc., a party who becomes aware that the document is intended to be tendered may make a “reasonable

request” under paragraph 167(c) of the Evidence Act for production and permission to test or examine a document or

thing, or for the calling of a person having a connection with the document or thing of the kind specified in section

166. In order to ensure that the request is ‘reasonable’, sufficient time should be allowed for the proving party to

comply with the request prior to hearing. If the resisting party becomes aware of the existence and likely relevance

of a disputed document at an earlier stage, it is obviously unwise to delay making requests until the last fortnight

before trial, particularly if the dispute concerning authenticity will require expert evidence.

If discovery has been ordered, the admissibility of an original or copy document may be assisted by an admission of

authenticity arising by implication under SCR Part 18, rule 4 - now UCPR rule 17.5 (description in list of documents

not disputed within fourteen days after time for inspection). Conversely, an inspecting party should give such notice

if wishes is to avoid the implied admission.

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The provisions of the Usual Order relating to documentary evidence speed up proceedings at

the trial by disclosing the parties’ case and evidences to each other, but they do not (except

where there is express consent) facilitate proof by making documents or copies of documents

admissible which would not otherwise be so. They should therefore be read in conjunction with

the provisions of the Evidence Act, particularly sections 48, 171 and 173 with respect to

facilitating proof, and sections 167 and 169 with respect to testing and resisting proof.

Paragraph 4 of the Usual Order requires co-operation between the parties to enable the Plaintiff

to compile bundles of documents for tender by any party, paginated and indexed with details of

the tendering party and whether tender is consented to. The Court requires two copies for its

own use – one to become evidence and the other as a working copy. It is normal for the parties

to cooperate in producing sufficient copies of the bundles of documents not just for the Court,

but for counsel and solicitors for all parties.

The Court has noted a ‘worrying tendency’ for bundles of documents to be of great size due to

the inclusion of bulky documents of marginal relevance, and warned of adverse costs orders.100

If the only reason for including a particularly large document in a bundle is to ensure that one

has the right to rely on it in case it becomes important, or to prevent one’s adversary from

obtaining an advantage by its absence, consideration may be given to the use of section 50 of

the Evidence Act (proof of complex or voluminous documents by summary), or to the

preparation of a bundle of documents which contains agreed extracts from particular documents.

Documents for lodgement with the Court Paragraph 7 of the Usual Order contemplates that counsel will attempt to settle a statement of

agreed issues, a chronology and (if appropriate) dramatis personae to be filed with the Judge’s

associate by the plaintiff’s counsel; or in the absence of agreement, by counsel separately.

Each counsel must also file a list of topics, propositions of law and authorities in the order in

which they are expected to arise in submissions. These documents are to be filed with the

99 Paragraph 5.

100 Practice Note 89, Commentary; Practice Note 100, cl. 26. – now Practice Note SC Eq 3, clause 41

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Judge’s associate by 4:30pm on the last working day before trial. By that stage, the Judge will

also have two copies of each witness statement and expert report to be relied on in each party’s

case, and two indexed copies of the bundle of documents – the totality of the intended cases in

chief and documentary evidence.

Preparing the case for hearing Commercial litigation proceeds on the assumption that each party’s case will be thoroughly

prepared, documented and disclosed before trial. Counsel will usually be required to give

detailed advice on the merits of the case and on evidence on at least one occasion. The depth

of preparation required tends to be greater than in other litigation. The documents which the

Practice Note requires to be produced provide part of the structure for that preparation.

In some cases it will be appropriate fully to computerise a case, so that all evidence and trial

transcripts are available in electronic form. In others it will be sufficient to use computer

technology to help organise the case. For example, it is not difficult to produce a single

document in the form of a multi-column table that can readily be used as the basis for the

chronology, the list of documents for tender and for the index to the bundle of documents.

Written submissions on law or facts can be prepared in advance and modified at the last minute

as the course of evidence may require.

The role of counsel, and of junior counsel in particular, varies from case to case. It is affected

inter alia by the nature of the case, the commitments and experience of the other practitioners

involved, and the particular working relationship between counsel and solicitors. The efficient

management of the documentary requirements of the Usual Order is a task which often falls to

junior counsel and which can have a significant effect on the overall conduct of the litigation.

Once the trial is imminent, time is precious and disorganisation can be fatal, but a well-

organised case enables the legal and factual elements of the claim or the defence to be

recognized quickly and deployed persuasively.

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TABLES

PROCEDURE & TIME LIMITS IN THE EQUITY DIVISION

SUMMONS PLEADINGS

1. Service of originating process

5 days before return date

Pt 5 r 3, subject to Pt 7 r 7

Within 1 year from filing, subject to the Rules

Pt 7 r 7

2. Appearance by defendant

By return date Pt 7 r 5 Within 14, 21 or 28 days after service, depending on place of service

Pt 7 r 5

3. Service of affidavits

As directed by the Registrar If and as directed Pt 26

4. Discovery

28 days after order or notice of order

Pt 23 r 3(5) 28 days after order or notice of order

Pt 23 r 3(5)

5. Inspection

Without discovery: within a ‘reasonable time’ after notice

Pt 23 r 2 Without discovery: within a ‘reasonable time’ after notice

Pt 23 r 2

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Following discovery: within 21 days after service of list of documents

Pt 23 r 3(10) Following discovery: within 21 days after service of list of documents

Pt 23 r 3(10)

6. Interrogatories

14 days from notice (after close of pleadings)

Pt 24 rr 1, 2

As ordered by the Court

Pt 24 r 5 As ordered by the Court

Pt 24 r 5

7. Setting down for hearing

From Registrar’s directions list when the action appears ready.

After close of pleadings, any party may file notice to set down for hearing (Pt 33 r 5) which brings the case into the Registrar’s directions list from which it may be set down.

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TIME LIMITS: COMMERCIAL LIST USUAL ORDER FOR HEARING

Abbreviations: D Date on which the date for hearing of the action is determined H Date of hearing or commencement of hearing

Numbers refer to paragraphs of the Usual Order for Hearing (Annexure 3 to P.N.100).

28 days before H Service of expert reports 1(a)

28 days before H Exchange of signed witness statements 2

14 days before H Service of responsive expert reports 1(b)

14 days before H Service of objections to expert reports 1(c)

14 days before H Service of objections to witness statements &/or affidavits

3(b)

14 days before H Notices requiring tender of an original document

5(b)

14 days before H Service of lists of documents to be tendered & offer of inspection

4(1)

7 working days before H

(If discovery has been ordered) service of supplementary lists of documents

6(b)&(c)

7 working days after service of list of documents to be tendered

Notify consents to tender, disputes as to authenticity and objections

4(2)

7 days before Hearing

Service of objections to responsible expert reports

1(c)

7 days before Hearing

Notices of intention to tender an original document

5(1)

4th last working day before Hearing

Delivery of 2 sets of copies of documents for tender to plaintiff

4(3)

Last working day before Hearing - midday

Plaintiff files 2 copies of bundles of documents, indexed and paginated, with Judge’s associate

4(3)

Last working day before Hearing - 4:30pm

Counsel file with Judge’s associate and serve statement of issues, chronology, dramatis personae, lists of topics, propositions and authorities

7

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CONTENTS

INTRODUCTION ....................................................................................................................................................... 1

THE EQUITY DIVISION AND THE COMMERCIAL LIST ............................................................................... 2 THE EQUITY DIVISION ............................................................................................................................................... 2 THE COMMERCIAL LIST ............................................................................................................................................. 4 CASE MANAGEMENT ................................................................................................................................................. 7

PRACTICE IN THE EQUITY DIVISION ............................................................................................................... 9 COMMENCEMENT OF PROCEEDINGS ........................................................................................................................... 9 URGENT AND INTERLOCUTORY RELIEF .................................................................................................................... 11 EXPEDITION ............................................................................................................................................................. 13 DISCOVERY AND INTERROGATORIES ........................................................................................................................ 14 EVIDENCE OF WITNESSES ......................................................................................................................................... 15 DIRECTIONS AND SETTING DOWN FOR TRIAL ........................................................................................................... 16 LISTS FOR HEARING ................................................................................................................................................. 17

One Day List ....................................................................................................................................................... 17 General list.......................................................................................................................................................... 18 Masters’ List ....................................................................................................................................................... 18

PRACTICE CONCERNING AFFIDAVITS AND DOCUMENTS FILED IN COURT ................................................................. 18

PRACTICE IN THE COMMERCIAL LIST ......................................................................................................... 22 JURISDICTION ........................................................................................................................................................... 22 COMMENCEMENT..................................................................................................................................................... 23 DIRECTIONS ............................................................................................................................................................. 24 SETTING DOWN FOR TRIAL ....................................................................................................................................... 26 EVIDENCE OF WITNESSES ......................................................................................................................................... 27 DOCUMENTARY EVIDENCE ...................................................................................................................................... 28 DOCUMENTS FOR LODGEMENT WITH THE COURT .................................................................................................... 30 PREPARING THE CASE FOR HEARING ........................................................................................................................ 31

TABLES ..................................................................................................................................................................... 32 PROCEDURE & TIME LIMITS IN THE EQUITY DIVISION ........................................................................... 32 TIME LIMITS: COMMERCIAL LIST USUAL ORDER FOR HEARING ........................................................... 34