The “How To” for Trial Civil Procedure Reforms

1. The “How To” for Trial Civil Procedure Reforms Wade Roper Law Society of the Northern Territory

2. “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) Practice Note 61 -Practice Direction No 6 of 2009 Trial Civil Procedure Reforms

3. 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.

4. 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.

5. 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.

6. 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.

7. 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?

8. 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?

9. 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. What does that construction mean for the “How To”?

10. 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).

11. 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).

12. 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.

13. 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).

14. 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.

15. 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.

16. 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.”

17. 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.

18. 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.

19. 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.

20. Conclusion and Questions