Case Management under the NCF
- Court's case management approach
- Central Practice Note: National Court Framework and Case Management
Under the NCF, the key objective of case management is to reduce costs and delay so that there are:
- fewer issues in contest
- in relation to those issues, no greater factual investigation than justice requires and
- as few interlocutory applications as necessary for the just and efficient disposition of matters
The Court's new national practice notes set out the arrangements for practice, procedure and case management within the Court. These practice notes are a central part of introducing a nationally consistent approach to case management and making the Court more streamlined and efficient.
Further information about the new National Practice Notes and the practice notes are available on this website.
The Central Practice Note (CPN) is the core practice note for Court users. The CPN addresses the guiding NCF case management principles applicable to all NPAs.
All other practice notes (NPA and general practice notes) are to be read within the framework established in the CPN. Parties should not commence or take steps in proceedings without first considering the principles set out in the CPN.
One of the main aims of the CPN is to ensure that case management is not process-driven or prescriptive, but flexible - with parties and practitioners being encouraged and expected to take a common-sense and co-operative approach to litigation to reduce its time and cost.
Below is a summary of the key case management principles and procedures set out in the CPN:
- Commencing proceedings (Part 6 of the CPN)
The key focus of the Court will be to ensure that the most appropriate and efficient mechanisms for case management, including appropriate mechanisms suggested by the parties, are adopted when considering the nature of each case and the needs of the parties.
Parties may adopt an expedited or truncated hearing process and a tailored or concise pleading process set out in one NPA practice note for use in a different NPA (for example, the use of a concise statement as set out in the Commercial and Corporations Practice Note may be used in any NPA).
- Case Management Hearings (Part 8 of the CPN)
The first case management hearing is integral to case management. Its aim is to identify issues at the earliest possible stage. Generally, the Docket Judge will conduct the first case management hearing within 5 weeks of filing and serving of a proceeding.
The Court expects that prior to the first case management hearing parties will consider and discuss with the other parties the Court's Case Management Imperatives. Parties should be familiar with paragraph 8.5 of the CPN, which sets out the Court's Case Management Imperatives:
Case management imperatives:
(a) identifying and narrowing the issues in dispute, including in any possible cross-claim, as soon as possible and the early identification and joinder of any further necessary parties and whether any Constitutional issue arises that would involve a notice under s78B of the Judiciary Act 1903 (Cth);
(b) taking to trial only the critical point(s) in issue;
(c) considering whether the proceeding is more appropriately heard in the Federal Circuit Court or whether the matter should, or is required, to be heard by a Full Court;
(d) considering the use of, and timing for, any alternative dispute resolution, including mediation;
(e) considering how best to manage justiciable issues, such as possible separation of liability and quantum or penalty, preliminary issues of fact and law and whether or not some or all issues are susceptible to being referred to a referee under s 54A of the Federal Court Act and Division 28.6 of the Federal Court Rules;
(f) considering how best to manage lay and expert evidence efficiently and how to limit it to what is necessary; and considering how best to put forward relevant evidence - whether by affidavit, statement, oral evidence or a combination thereof;
(g) setting an appropriately early trial date and maintaining that date;
(h) eliminating or minimising the number of interlocutory hearings, and any interlocutory disputes being determined "on the papers" wherever possible;
(i) eliminating or reducing the burden of discovery;
(j) using collaborative tools to minimise the length of the trial hearing, including:
• using cross-party statements of agreed facts or law or an agreed chronology;
• agreeing on the time for trial and how it may be divided (eg. a "chess-clock" approach);
(k) making appropriate admissions in relation to the facts and matters which are not seriously in dispute;
(l) capping the amount of costs to be recoverable; and
(m) receiving short-form reasons for judgment to facilitate the expeditious delivery of any judgment.
- Alternative Dispute Resolution (ADR) (Part 9 of the CPN)
The Court expects parties will always consider or seek an early resolution of matters utilising the broad range of ADR options available, including mediation.
- Approach to discovery (Part 10 of the CPN)
Where discovery is necessary, the Court expects the parties and their representatives to take all steps to minimise its burden.
Parties should also consider the possible benefits of utilising innovative discovery techniques, including the Redfern Discovery Procedure or the Memorial Procedure.
- Evidence and witnesses (Part 11 of the CPN)
At an early stage in the proceedings parties should consider and confer about an approach to the management of evidence – including the best way to lead evidence (whether written or oral).
The parties' approach should have in mind the most effective, efficient and economical way to manage evidence.
- Interlocutory steps (Part 12 of the CPN)
Interlocutory hearings should be kept to a minimum and wherever possible these matters will be dealt with 'on the papers'.
The Court expects parties will have conferred in good faith prior to listing an interlocutory dispute.
Parties should consider the use of Court registrars for mediations or confidential conferences over interlocutory disputes.
- Pre-trial case management hearing (Part 13 of the CPN)
A pre-trial case management hearing will generally be held approximately
3 weeks prior to the scheduled trial date.
The pre-trial case management hearing is an opportunity for the parties and the Court to deal with any outstanding matters or applications before the start of the trial.
Prior to any pre-trial case management hearing, it is expected that the parties will have conferred in an effort to identify and agree on the most efficient trial process and proposed pre-trial orders for consideration by the Court.
- Written submissions and list of authorities (Part 14 of the CPN)
Written submissions can be a very useful method of shortening addresses in both final and interlocutory hearings, provided they are prepared well.
Written submissions should be signed by, and be the responsibility of, the advocate who is to address the Court at the relevant hearing.
- Parties' conduct and communication with the Court (Part 15 of the CPN)
At all times, parties are expected to communicate courteously with each other, the Court and all Court staff. For further information about communicating with the Court, parties and their lawyers should also refer to the Guide to Communications with Chambers Staff and Guide to Communications with Registry Staff.
- Judgment (Part 16 of the CPN)
The Court aims to deliver judgment as soon as is reasonably practicable. In the ordinary course (and subject to the size and complexity of the matter) the Court will endeavour to deliver judgment resolving the substantive dispute within 3 months of the receipt of the final submissions.
- Costs (Part 17 of the CPN)
The Court recognises that the determination of the quantum of costs for a successful party should not be delayed