BAR READERS COURSE

DISTRICT COURT CIVIL PRACTICE

GENERALLY

1. Procedures with respect to civil and criminal matters differ. This paper deals with civil matters only.

2. The civil jurisdiction of the District Court includes: Common Law

o Motor accident claims o WID claims (workers comp) o General personal injury o Medical negligence claims

Contracts Commercial disputes General money claims

3. Monetary limit in the District Court varies according to nature of the proceedings.

4. In common law, intentional torts and commercial disputes the limit is $750,000 [s.5.(1)

District Court Act 1993.]

5. Pursuant to s.51(2)(a) District Court Act – parties can extend the jurisdiction by consent.

6. If the defendant does not object, the jurisdiction can be increased by up to 50% to $1,250,000 [s.51(2)(b) District Court Act.]

7. The District Court Civil sits in Sydney at the John Maddison Tower.

8. Court lists are generally available after 3.30 pm the day before your listing date.

9. There is an online registry for all courts and listings –

www.onlineregistry.lawlink.nsw.gov.au where you can check the court you are in and the relevant details.

10. There is also an app – search NSW court list - get it. Very handy when you forget where you need to go for a matter.

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11. Most courts have Practice Notes – read them – www.districtcourt.justice.nsw.gov.au.

12. For Civil matters DC: - Case management in general list – P.N.#1 [compulsory reading]

DIRECTIONS

13. For those who have never appeared in the District Court, civil directions are how the court manages the parties to prepare the case.

14. District Court directions may be your bread and butter for your first few years at the Bar.

15. If you have consent with the other side you can submit the orders to the JR directly, but they need to be sent at least 2 clear working days prior to the directions hearing date. There is a practice note on this point (use of email in matters before the District

Court of NSW including the list Judge and the Judicial Registrar) - READ IT.

16. Directions hearing for matters are usually before the Judicial Registrar (Court 7D) or the List Judge (if the matter is more complex). Remember, the Judicial Registrar and List Judge are frantically busy.

They want you to get to the point.

They don’t have time to fully read the file, therefore they have to trust you. A

reputation for not being trustworthy is professional death.

Be frank about the failings.

If there, have been stuff-ups in preparation then admit them.

Do not flail about blaming the opposing side for your own side’s shortcomings.

Admit the failings, but have a plan as to how they are to be remedied or addressed.

Get clear instructions – it helps to know what the case is about.

17. In the District Court, each matter will have at least two directions hearings before the matter gets on for hearing. They are commonly called: Pre-trial directions. Status conference.

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18. The usual practice in the District Court for a common law claim is as follows: Plaintiff files a Statement of Claim

Matter is listed for a pre-trial conference.

19. At the pre-trial conference the parties representatives attend.

20. Orders sought should be along the following lines:

o Defendant to request further and better particulars by…………………..

o Plaintiff to respond to further and better particulars by…………………..

o Defendant to file a Defence by………………………………………………………….

o Plaintiff to serve primary medical and experts’ reports by………………..

o Defendant to serve primary medical and experts’ reports by……………

o Matter comes back to status conference on……………………………(which is

usually six or seven months post filing of the Statement of Claim)

21. For other “civil” claims i.e. money/contract/commercial. Below is an example of

proposed orders for a first directions:

Defendant to request further and better particulars by…………………..

Plaintiff to respond to further and better particulars by…………………..

Defendant to file a Defence by………………………………………………………….

Plaintiff to serve reports/affidavit evidence it wishes to rely on by…..

Defendant to serve reports/affidavit evidence it wishes to rely on by.

Matter comes back to status conference on……………………………

22. However, there are no hard and fast rules with regards orders, so be flexible.

23. Have a realistic and achievable timetable. Encourage your instructing solicitor to be

realistic.

24. REMEMBER If you don’t have an order for service of your opponent’s reports, they can be served on you 28 days out from trial [Rule 31.28] so always get orders.

25. If you are mentioning by consent and the Judge is not prepared to make the consent

orders, ask for time to call the other side, especially if the Judge is peeved with them. Ask to stand the matter down in the list, and re-mention it when you have instructions.

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26. Often when the matter comes back after the first directions hearing it may not have progressed in accordance with the timetable set or at all. You will need to be able to explain why. It is helpful if you have an affidavit of your instructing solicitor, but you can provide information from the Bar Table. This is all the more reason as to why it is important to get the Registrar and the bench to trust what you say.

27. Repeated delays will result in “show cause” hearings or orders for affidavits to be provided to the court to explain the delays.

SETTING A MATTER DOWN FOR TRIAL

28. At the status conference, the parties are generally expected to take a date for hearing

with an earlier deadline to conduct an informal settlement conference or mediation.

29. You should always be ready for a matter to be set down for hearing at the status conference. Being ready includes having available dates for counsel briefed on the hearing.

30. Often the time between allocation for hearing and hearing dates allows for any slippages in timetable to be dealt with. If the orders have not all been complied with, then ensure the timetable allows enough time for them to be complied with before the matter is heard.

31. You also want any other orders with respect to service of additional evidence.

32. Parties should always be prepared to attend an ISC or mediation – cases cost more to run than settle. The longer the hearing, the more likely the court will insist on mediation.

33. Before you go to court for later directions hearings, you should make sure you have: Counsel’s availability.

Witness availability.

Any dates the solicitor wishes to avoid.

The likely length of the hearing (a realistic estimate).

34. The courts usually list backwards from a Friday, so with a 2 day estimate the case

starts on a Thursday, a 3 day estimate on a Wednesday and a 4 day estimate on a Tuesday. Thus the estimate needs to be reasonable and make some allowance for contingencies.

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35. The Judge may ask you about the number of witnesses and who they are, especially with a longer estimate or where there is a dispute between the parties as to the estimate.

36. You should always talk to your opponent beforehand about their estimate and their

available dates. Matters go much more smoothly if there is agreement over hearing length and some agreed dates.

37. Following the setting of the matter for hearing, an order will be made along the lines “Standard Orders for Hearing”.

These are contained on a green sheet. It is on the Bar Table. Make sure you give it to your instructing solicitor.

ADJOURNMENT OF A HEARING DATE

38. This can be a hard one to obtain. Do not assume it will be easy.

39. How to deal with adjournments:

Notice of Motion and Affidavit.

Be frank as to the reasons why it is required.

40. You need a good reason and it is not sufficient that your side did not do something or

wanted to revise the case at the last minute. Nor is counsel’s availability likely to be acceptable.

41. Also, you are seeking the indulgence of the court. Expect to pay the costs of the

motion. Don’t forget the big picture of the case.

MOTIONS

42. In the District Court, the motions list is on a Friday (Court 4A). However some motions with a 2 hour plus estimate can be listed before the list judge.

43. The mechanics involve a call-over at 9.00 am for consent matters and adjournments before a Registrar. At the callover the registrar wants to know how long your motion will take.

44. Remember motions are filed with a return date, usually within a week or two.

45. On the first date, the motion may run. Be prepared

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46. However, you need to consider if there are issues which the other side wish to contend with or respond to with regards to the motion and the orders sought. They are entitled to put on evidence in response to the motion.

47. Therefore, before the first return date of the motion;

o Get your solicitor to speak to the other side, and ask. o Do they oppose it? o Do they wish to put on evidence? If so, do they agree to have the motion

stood over with consent orders for evidence.

o Get to court at 9.00 am on Friday and hand up consent orders. If you are early you can be done by 9.30

48. Remember, justice must be seen to be done and therefore a short adjournment so

everyone is ready is likely to be agreed by the court.

49. Preparation for Motions: Have some evidence. Affidavits should be well organised (without excessive

annexures) and preferably paginated. Don’t duplicate annexures with the other side’s affidavits.

It is preferable if counsel settles the affidavit.

The advantage of an independent Bar is the opportunity to step back and reflect, as compared to a solicitor who is close to the battle. Part of your role as counsel is to assist with a realistic appraisal about the nature of the interlocutory fight and its importance to the case. At the same time, you also want further briefs and don’t want the solicitor to think of you are a wimp. It is a difficult balancing act.

50. If your motion is going to run on a particular day, before it runs you will be asked by

the registrar how long you will take. It will then be referred to the Judicial Registrar for hearing (or occasionally an available judge).

51. There is no such thing as a 5-minute motion.

52. Remember – you will always talk longer than you think. Your opponent (if opposing) will always take longer than they think.

It will take about 2 minutes to tell the judge/registrar what the motion is about

and

at least 5 minutes for them to read the document.

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Plus the time it takes for you and your opponent to address the court.

53. Give an honest time estimate. It helps the bench and those waiting to be called upon.

54. Long motions are generally considered to be those with an estimate of 2 hours plus

and are usually specially fixed.

55. Tip for new players – check on a Thursday night where the motion is the following day – short motion in the callover list or long motion in the reserve list before the List Judge.

56. If a motion has been placed in the short list and needs to be in the long list then try

and get it stood over by consent to be specially fixed, otherwise you will wait around all day and most probably not be reached.

57. The Stone technique on a notice of motion is unorthodox – give a very short opening

address on the motion and have it cover most of your closing submissions. Preferably in ten sentences or less. Then tender your evidence. Don’t be repetitive by giving a closing that echoes the opening. The things the Judge wants to hear:

Who are you for?

What do you want?

Why should you have it?

58. Some Judges, not used to the Stone technique, will push to have the evidence and then submissions. If the proffered “A brief introduction of the issues will shorten your reading time” is not accepted, then revert to the conventional.

59. You should be prepared to be asked about the court’s power to order the relief that you seek. Be prepared to answer as to the source of the power for any orders.

60. For longer motions, there is nothing wrong with having a short chronology and/or a

short outline of submissions, but the emphasis is on short.

61. I cannot stress enough – motions will be bread and butter for a while at the Bar.

62. Be prepared. Always have access to the Evidence Act and UCPR – and copies of the relevant rules for the Judge.

INFANT APPROVALS

63. The District Court deals with approvals of damages awarded to children and the intellectually disabled. These settlements require approval of the court.

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64. The approvals list in the District Court is usually at 9.00 am on a Friday (if Judge Gibson is sitting).

65. There are specific protocols (in a Practice Note) for getting a settlement approved,

including the provision of an advice from counsel or a solicitor annexed to an affidavit that is not served on the defendant.

66. Approvals are best achieved by being organised. Well set out affidavits (filed in advance), short minutes, clarity as to the deductions.

67. You need to be clear as to the deductions coming out of the settlement, including any

solicitor/client costs coming out.

HEARINGS

68. Preparation makes the hearing easier. Lots of copies of documents – at least 4. One copy as the exhibit and a working

copy for the judge, a copy for the other side, plus your own copy. Some judges will be happy for their associate to make copies of documents, others will bristle. Assume you will draw the later.

Have a tender/exhibits folder – it keeps everything together.

Always have a chronology.

If there are a lot of them, have a list of witnesses (or even just relevant names)

for the judge. A summary of the pleadings can be very handy (and can be handed up as aide

memoire). By the end of a case, you may want a written outline of submissions. The legal

component (and hopefully a good deal of the factual component of it) can be prepared in advance.

Don’t forget before a hearing to pack post-it notes, tags, flags, highlighters, hole punch, stapler and the law books (Evidence Act and UCPR). And the occasional District Court judge wears a wig for civil hearings.

69. Openings

An opening address should be fair, but only just. A good opening should not allow your opponent to say “What was critically left out was…..” A good opening can help set up or settle the case. You are not only addressing the judge, but articulating the case to your opponent’s client if they are there and listening.

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There is nothing wrong with handing up material during the course of the opening and tendering it (if it is uncontroversial and there is no objection).

Most Judges will ask the defence (in civil proceedings) if they want to make any

opening comments. It is usually a good idea to do so if you have an alternate case to put.

Asking for time to negotiate (overall resolution or specific issues) operates on trust. Don’t sit around for hours if settlement prospects are low, if you could be getting on with the case and if you are blowing out the estimate.

70. Closings

I am a great believer in an outline to assist with closing submissions, especially

for a Judge who is likely to reserve for any significant period of time. It makes a difference.

EXTRA HINTS AND TIPS 71. The Court staff are your friends. Be courteous.

72. Someone is always listening.

73. Judges like to do justice.

74. Most Judges hate bickering at the bar table.

75. Your opponent:

Is likely to be your opponent again some time.

Is someone you may want a favour from at some point in the future.

Does not like being embarrassed and/or lectured to.

Does not like being verballed.

76. Just because there is a solicitor against you on the other side, avoid being patronising,

bullying or both: They may have more experience.

They may be a future source of briefs.

Their barrister may turn up and barristers don’t like it when their solicitors have

been bullied.

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77. The client (either plaintiff or defendant) should not be encouraged to attend the sausage factory unnecessarily.

78. Discussions with the other side are valuable in almost every circumstance – organisation, mechanics, settlement.

79. Some helpful sites: Judcom.nsw.gov.au – this is a great go-to source on aspects of practice and

procedure. It was last updated in 2015, but it gives a good starting point for matters in civil and criminal practice and local bench books.

NSW Case Law

AR Connolly - Benchmark

NSW Court of Appeal web site www.nswca.jc.nsw.gov.au

DATED: 4 May 2017

ANDREW STONE SC NICOLE COMPTON Sir James Martin Chambers Sir James Martin Chambers