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					The “How To” for Trial Civil
Procedure Reforms

Wade Roper




                     Law Society of the
                     Northern Territory
Practice Note 61 -Practice Direction No 6 of 2009
          Trial Civil Procedure Reforms

“Unless otherwise ordered by a Judge, this Practice Direction
applies to all civil proceedings commenced by writ (other than a
writ of habeas corpus) or by Originating Motion where the Court
has ordered that the proceeding continue as if by writ or has
ordered pleadings in accordance with 4.07 pending in the
Supreme Court on 1 January 2010 (the commencement date) or
commenced thereafter.” (my emphasis)
             Possible Constructions
A. The Practice Direction applies only to matters commenced
   post 1 January 2010.

B. The Practice Direction applies to matters that have been
   commenced prior to 1 January 2010 by Originating Motion
   and an order has been made that they continue on
   pleadings, with such pleadings to be filed post 1 January
   2010.

C. The Practice Direction applies to all proceedings
   commenced by a generally endorsed Writ (Rule
   5.04(2)(b)) or Originating Motion with pleadings to be
   filed post 1 January 2010.

D. The Practice Direction applies to all proceedings
   continuing beyond or commenced after 1 January 2010.
 Possible Constructions (Cont)
For the purposes of the
considerations which
follow, the terms
“pleadings” refers to the
exchange of a Statement
of Claim, Defence, Reply
etc rather than to the
originating process itself.

It is these latter pleadings
which approximate the
level of detail which Part
2 requires of the
correspondence between
the parties.
      Which Construction ought to be
               preferred?
A. The Practice Direction applies only to matters commenced
   post 1 January 2010.

  It is difficult to see how this construction can be justified on the language
  of clause 1.

  The logical counterpoint to any such argument is that were the provision to
  be read in such a manner the word “pending” would be superfluous.


  Having regard to the objectives of the Practice Direction, the Court would
  be loathe in any event, to construe clause 1 in a manner so as to set up a
  distinction in the quality and control of case management practices,
  centred solely around the arbitrary selection of a date.
     Which Construction ought to be
           preferred? (cont)
B. The Practice Direction applies to matters that have been
   commenced prior to 1 January 2010 by Originating Motion
   and an order has been made that they continue on
   pleadings, with such pleadings to be filed post 1 January
   2010.
C. The Practice Direction applies to all proceedings
   commenced by a generally endorsed Writ (Rule
   5.04(2)(b)) or an Originating Motion, where pleadings are
   to be filed post 1 January 2010.
  There is some merit in these constructions. They remain true to
  the objectives and allow for the application of Part 2 of the
  Direction in circumstances where the issues have not already
  been narrowed through the exchange of pleadings.

  The hiatus between the making of any order requiring pleadings
  be filed and served and the actioning of the same, would enable
  the parties a limited period of time in which to, at the least,
  investigate alternative dispute resolution methodologies.
    Which Construction ought to be
          preferred? (cont)

Arguably construction C. is preferable to B. as the latter is more
encompassing and does not create a distinction between two
classes of proceeding of like nature.

This, however, highlights the major problem with either of these
constructions. Both are predicated upon the foundation that it is
acceptable to allow for a lesser standard of matter management
where proceedings are already on foot and pleadings have been
exchanged.

If one accepts that the Practice direction establishes, in effect, a
minimum performance code for the proper progression of
matters, why should a distinction be made solely on the basis of
the manner in which the proceedings were initiated?

For example, does Part 3 (which deals with preparedness of
parties at Case Management Conferences) have application in the
case of proceedings which fall within B. or C. above but not
proceedings commenced by Writ endorsed with a Statement of
Claim?
        Which Construction ought to be
              preferred? (cont)
D. The Practice Direction applies to all proceedings on foot or
   commenced after 1 January 2010.

   Caution dictates that this is the construction one should adopt.

   See: -             AON Risk Services Australia Ltd v Australian National
                      University (2009) 258 ALR 14.

                      United Super Pty Ltd v Randazzo Investments Pty Ltd
                      [2009] NTSC 50.

   Take the example of two hypothetical cases – Case A commenced 31 December 2009
   and Case B on 1 January 2010. If they both went to hearing on 6 June 2011, would the
   Court be forgiving of a failure on the part of the solicitors/clients in case A to comply
   with the relevant provisions of the Direction, if the Court ultimately takes the view that
   proceedings ought not have been commenced?

   Should case B be treated any differently?
What does that construction mean for
          the “How To”?
In short, we have to
consider what will be
expected of us in two
scenarios.

Firstly, in matters
commenced after 1
January 2010.

Secondly, in matters
commenced before that
date, which continue
thereafter.
     Matters Commenced post 1 January
                  2010
What you must do as a Plaintiff

1.    Write to give notice of the claim (“the Clause 6 Letter”).

2.    Consider Alternative Dispute Resolution and be in a position to demonstrate this
      consideration to the Court if required (cl. 11)

3.     Attend case management conferences:
           with an understanding of the real issues of substance which are in dispute
            (15.1);
           having considered, discussed and if possible agreed appropriate directions
            (15.2);
           with sufficient information about the availability of all prospective persons so as
            to allow for allocation of a trial date or window (15.3); and
           ready to deal with any and all outstanding procedural issues (15.4).

4.    Treat trial dates as sacrosanct and if any matters come to your attention which
      suggest a possible need to vacate, relist the matter immediately for directions (Part
      4).

5.    Ensure that continuing discovery obligations are complied with (Part 5).
  Matters Commenced post 1 January
             2010 (Cont)
The Clause 6 Letter must:
       set out the claim in detail (cl. 6.1);
       attach what will effectively be discovery of all relevant documents in
        your clients possession, custody or control (cl. 6.2);
       require the other party to acknowledge receipt within 14 days (cl.
        6.3 & 7);
       require the other party to formally respond within a reasonable
        period (1 month – see cl. 6.3);
       state whether proceedings will issue if the formal response is not
        received (cl. 6.4);
       identify and ask for copies of any essential documents which are not
        in the Plaintiff’s possession and the Plaintiff wishes to see (cl. 6.5)
       state, if proceedings will issue, the Plaintiff’s disposition to
        alternative dispute resolution (cl. 6.6); and
       draw the other party’s attention to the Court’s power to impose
        sanctions for non-compliance with the direction and if the other
        party is unlikely to be represented, provide them with a copy of the
        Direction (cl. 6.7).
     Matters Commenced post 1 January
                2010 (Cont)
What you must do as a Defendant

1.    Acknowledge receipt of the Clause 6 letter within 14
      days and advise when a formal response (“the
      Response”) will be forthcoming AND if the Response
      will take longer to provide than the time period
      stipulated in the Clause 6 Letter, give reasons why this
      is the case (cl. 7).

2.    The Defendant’s obligations concerning Alternative
      Dispute Resolution, case management conferences, trial
      dates and discovery are as per the Plaintiff’s.
    Matters Commenced post 1 January
               2010 (Cont)
The Response must:
    accept the claim in whole or in part and make proposals for
     settlement or reject the claim (cl. 8);
    give detailed reasons why the claim is rejected and which of the
     Plaintiff’s contentions are admitted or denied (cl. 10.1);
    attach what will effectively be discovery of all relevant
     documents in your clients possession, custody or control (cl.
     10.2).
    enclose copies of any documents asked for by the Plaintiff
     and/or explain why they are not enclosed (cl. 6.5 & 10.3);
    request any further documents from the Plaintiff (cl. 10.4); and
    state the Defendant’s disposition to alternative dispute
     resolution (cl. 10.5).
The Clause 6 Letter and the Response
 The Direction is silent as to what role, save as to the consideration of costs and
 interest, the Clause 6 Letter and the Response are to play in the Court’s considerations.

 I note that Mr Wyvill SC, who was instrumental in the fashioning of the Direction, takes
 the view that the Clause 6 Letter and the Response may actually be relied upon by the
 Court for the purposes of identifying the issues in dispute and would need to be
 embodied in open correspondence accordingly.

 With respect to Senior Counsel, I do not incline to that view. In my view that function
 will still be served by the pleadings in the proceedings, once commenced. There may be
 very good reasons why the manner in which, for example, any resulting Statement of
 Claim differs from the manner in which the claim was first articulated in the Clause 6
 Letter, most obviously:

 1.      as a result of the receipt and consideration of the Response; and/or

 2.     due to receipt of additional information or expert opinion.

 In the circumstances there is no reason, save for that considered below, that these
 letters cannot be in the form of “Calderbank Letters.”

 The difficulty with this approach is that there may be arguments as to the efficacy of
 the clause 6.2 or 10.2 discovery or with the production of material under clause 6.5 or
 10.4. In such circumstances, there may be reasons you do not wish the Court to have
 before it the Clause 6 Letter or the Response, where the same contain admissions going
 to the substantive matters.
The Clause 6 Letter and the Response
               (Cont)
 To avoid any problems in this regard, you can adopt either of two approaches, as
 follows:

 1.     Send not one but two letters. Namely, the Clause 6 Letter/Response, marked
        “Without Prejudice Save as to Costs” and a separate open letter attaching
        a schedule of all relevant documents under clause 6.2 or 10.2 and
        requesting any documents required under clauses 6.5 or 10.4; or

 2.     Again, send two letters, but in this scenario have the Clause 6 Letter and the
        Response as open correspondence attaching the proposed schedule of
        discovered material and hive off into a separate “Calderbank Letter” any
        proposal for a compromise of the claims.

 My only concern with the second approach is that if the manner in which the
 claim/defence is articulated differs from the manner in which the Clause 6
 Letter/Response advanced the same, there may be unnecessary arguments before the
 Court as to one’s ability to resile from the earlier articulation. As intimated above, there
 may be very good reasons underpinning any such differences, however, that in and of
 itself may not prevent the arguments from being raised.

 Finally and for the purposes of the discovery obligations, if there are too many
 documents to enclose under a schedule to the Clause 6 Letter or Response, then
 enclose those which are most significant and advise when and where the balance may
 be inspected – a range of dates would be best. If you adopt this course as the Plaintiff,
 you may need to allow more time for a response under clause 6.3 – ideally 30 days
 from the last date allowed for inspection.
Matters Continuing Beyond 1 January
                2010
Obviously those parts of the Direction which relate to post commencement
conduct will be equally applicable in any such matters – i.e. the “Case
Management Conferences” provisions enshrined in Part 3.

The difficulty arises in a consideration of what role Part 2 has to play in
such circumstances.

Clause 5 provides some assistance as to what should be done and is likely
to be used as a benchmark. That clause relevantly provides:

      “If there are circumstances which require a Plaintiff to commence
      proceedings before complying with this part, the parties should
      endeavour to comply with the spirit of this part as soon as
      reasonably possible after proceedings have commenced.”
Matters Continuing Beyond 1 January
            2010 (Cont)
So one has to comply with the spirit of Part 2 where strict
compliance is no longer possible, but what does that mean?

Much will depend on the stage of the proceedings.

At the very least the parties should consider the potential for
non-litigious resolution and be in a position to demonstrate that
for the purposes of clause 11.

If settlement overtures have not been made, consideration
should be given to issuing “Calderbank Letters” or exchanging
Offers of compromise.

If mediation or other alternative dispute resolution methodologies
are not considered suitable, one should communicate that in
writing to the other party, explaining why.
Matters Continuing Beyond 1 January
            2010 (Cont)

Finally, do not be afraid to
seek guidance from the
Court.

If you have a matter that
continues beyond 1 January,
take advantage of any
directions hearings to raise
the Direction with the Court.

There is nothing at all
improper in asking the Court,
what the Court considers a
practical application of the
Direction requires in all the
circumstances of the case.
What to do between now and 1 January
                2010
  The first thing to bear in mind is that, as we approach the end of the year,
  it becomes increasingly likely that new instructions will result in the
  issuance of process post 1 January 2010.

  In the circumstances, we should be already well progressed in developing
  precedent documents for the purposes of the Direction and be looking
  toward implementing appropriate practices now.

  No one should be sending out a letter of demand between now and 1
  January 2010, without first asking themselves whether it is a matter in
  which a Clause 6 Letter would be more appropriate.

  Finally, practitioners need to keep at the forefront of their minds what the
  effect of the Direction might mean to them in matters which are
  approaching the end of their limitation periods. While clause 5 provides
  some modicum of protection in such circumstances, it would obviously be
  preferable and in the client’s interests, to avoid any unnecessary
  argument.

  Obviously the longer the matter has been in a practitioner’s hands before
  action is commenced, the less likely there will be any justification for
  asserting an impending limitation period as circumstances requiring a
  departure from the Direction, for the purposes of clause 5.
Conclusion and Questions

				
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