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Practice notes

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Cite as: (2003) 77(3) LIJ, p.64

Supreme Court


Cite as: (2003) 77(3) LIJ, p.64

Transcript in civil proceedings

Practice Note No 3 of 2002

The Chief Justice has authorised the issue of the following practice note.

1. Revocation of previously applicable practice notes
Practice Notes No 1 of 1997, No 1 of 2001 and No 2 of 2002 are revoked.

2. Transcript in civil proceedings
This practice note applies to all civil proceedings in the Supreme Court of Victoria whether heard in Melbourne or on circuit but not to hearings before masters unless a master so orders.

In the interests of the efficient administration of justice, the Court has determined that unless the Court otherwise orders there shall be transcript of the conduct of:

  • all directions and interlocutory hearings; and
  • the trial of all civil proceedings;

and the cost of such transcript and incidental expenses shall be borne by the parties.

The Supreme Court has arranged a standing offer (the standing offer) with a preferred service provider (National Transcription Services Pty Ltd) for the provision of transcript in civil proceedings in the Court. The principal objective of the agreement is to ensure that transcript of high quality is provided to the Court and to the parties at reasonable cost.

3. Directions and interlocutory hearings
Directions and interlocutory hearings typically involve multiple cases before the Court on any sitting day. To ensure the efficient management of cases the Court has determined that transcription services for directions and interlocutory hearings be provided by the preferred supplier, subject to s130(3A) of the Evidence Act 1958.

At the time of commencement of the proceeding, where the case is to be issued directly into a specialist list, or at the time of filing of a summons seeking entry into a list, the party filing the material shall file a copy of a signed purchase order directed to the preferred supplier for the provision of recording and transcription services for all directions hearings and all other interlocutory hearings. That party shall deliver the original purchase order to the preferred supplier.

In cases now pending in the specialist lists, the solicitor for the party who entered the case in the list must, before the next return of the summons for directions or other occasion when the case next comes before a judge, sign a purchase order to similar effect.

The solicitor (or the litigant if unrepresented) signing the purchase order shall pay the preferred supplier the cost of all transcript provided pursuant to a purchase order.

The ultimate burden of the cost of provision of transcript to the parties and the Court will be dealt with as part of the costs of the proceeding.

4. Trials
Subject to any contrary order of a judge or master, a hearing date for the trial will not be fixed unless the parties’ solicitors (or the litigant if unrepresented) have signed and delivered a purchase order form to the preferred supplier (or, subject to the said s130 (3A), entered into a contract with another licensed supplier) for the provision of transcription or recording services in accordance with the standing offer. Transcription services are to be provided in accordance with the standing offer. They may be provided by the preferred supplier or, subject to the said s130(3A) by another supplier.

5. Courtroom setup and technical requirements
The principal purposes of this section are to ensure the efficient, successful and timely provision of civil transcription services in civil proceedings, and to address occupational health and safety considerations in relation to the installation and use of equipment and associated cabling by transcript providers.

The Court has prescribed technical standards for connection to the audio and data cabling infrastructure within courtrooms provided by the Court. These standards are maintained by the information technology manager, Supreme Court of Victoria. All transcript service providers are to use the technical infrastructure provided.

The Court shall provide access to courtrooms, not less than 30 minutes before the start of a hearing, for the purposes of setting up and testing transcript recording, production and distribution equipment. Any equipment installed for the purposes of real time transcript recording and distribution, particularly real time transcription services, should be demonstrably operational no less than 15 minutes before the start of court to ensure the successful reception of such broadcasted information by judicial officers and practitioners when the court begins.

AR Traves
Senior Associate to the Chief Justice
16 December 2002


Interstate Queen’s Counsel and Senior Counsel

Practice Note No 4 of 2002

The Chief Justice has authorised the issue of the following practice note.

1. Revocation of previously applicable practice note
Practice Note No 1 of 1995 is revoked.

2. Interstate Queen’s Counsel and Senior Counsel
Queen’s Counsel, appointed as such elsewhere in Australia, will be accorded in the courts of Victoria the seniority and privileges of Queen’s Counsel on production of a copy of their commission, without the necessity of obtaining a separate commission as Queen’s Counsel in Victoria.

Such persons will be accorded seniority in accordance with the date of their appointment in the jurisdiction in which they were first appointed Queen’s Counsel.

This practice note applies to Senior Counsel appointed or approved by the Chief Justice in other states and territories.

AR Traves
Senior Associate to the Chief Justice
16 December 2002

County Court


Cite as: (2003) 77(3) LIJ, p.64

Building Cases Division

Notice to Practitioners
(This notice supersedes previous County Court Building Division notices.)

In 2003 the judge in charge of the Building Cases Division will again be Judge Shelton. His Honour’s associate is Anthony Bastianon (tel 8636 6655, fax 8636 6043). The Building Cases Division of the Business List has as its aim the early and cost-effective determination of cases in the list. The following procedures are intended to ensure that the aim of determining cases by settlement, mediation or judgment within 12 months of commencement is met at the least cost to the parties as is consistent with a just determination of the case in all the circumstances.

This notice to practitioners is to be read in conjunction with the provisions of Order 34A – Case Management of the County Court Rules of Procedure in Civil Proceedings 1999 and 2002 Consolidated Practice Note – Operation and Management of the County Court Civil Lists (Melbourne Registry) dated 20 November 2002.

2003 dates

1.  The practice of holding monthly directions hearing days for the disposition of interlocutory matters will continue. It is proposed that the matters will be listed at 10am.
2.  For 2003 the Building Cases Division dates proposed are:
Tuesday, 28 January
Monday, 24 February
Monday, 17 March
Monday, 28 April
Tuesday, 27 May
Tuesday, 17 June
Monday, 28 July
Tuesday, 26 August
Monday, 22 September
Monday, 20 October
Monday, 17 November
Monday, 15 December

Consent matters

3.  A consent matter (including an adjournment) is one where the parties consent to all terms.
4.  Typed draft consent orders signed by all parties may be delivered or faxed to his Honour’s associate prior to 12 noon on the Friday preceding the directions hearing date. If such a course is followed, the parties need not attend at the directions hearing unless requested by his Honour’s associate.
5.  The pro-forma draft orders formulated by the judge in charge of the Damages List and Business List may be accessed via the Internet at http://www.countycourt.vic.gov.au/practcon.htm. Parties are encouraged to use such forms where possible.

Contested matters

6.  Contested matters will be dealt with as advertised in the Law List. Where appropriate, the judge will hear short contested matters in their order. More lengthy contested matters may be put to the end of the list or adjourned to another day. Where it is appropriate to do so, his Honour will himself try questions which can be disposed of briefly, and which may assist the resolution of the proceeding. For this purpose he may set aside such other day as may be available. Practitioners should consider whether such a question arises in their proceedings.

Mediation

7.  Parties to proceedings in the Building Cases Division should anticipate that at the first directions hearing orders for mediation will be made by the judge. For this reason parties are expected to have full instructions as to mediation and as to an appropriate mediator at the time of such directions hearing, failing which the judge may appoint such mediator.
When a mediator is appointed, it shall be the responsibility of the parties to ensure that the mediator is supplied with copies of such documents as are necessary. Usually, and subject to other order, it will be the responsibility of the plaintiff’s solicitors to ensure that this is undertaken.

Special referee

8.  Practitioners should consider the appropriateness of the appointment of a special referee pursuant to rls 34A.22 and 50.01 to 50.06 and be prepared to discuss this at directions hearings.

Liberty to apply

9.  Parties in the Building Cases Division are granted general liberty to apply and are encouraged to do so if difficulties arise between dates set for directions hearings on application to his Honour’s associate (not to the County Court registry) by telephone, letter or fax. In an appropriate case, an application may be brought before his Honour on short notice.
Where it is appropriate to do so, his Honour will also hear and determine other urgent applications arising out of building projects, notwithstanding that the proceeding has not been entered in the Building Cases Division at the time of the application. Such matters include applications for interlocutory injunctions and applications under the Commercial Arbitration Act 1984 (see para 10 below).

Applications pursuant to Parts V and VI of the Commercial Arbitration Act 1984

10.  Practitioners who wish to make any application to the Court pursuant to jurisdiction under the Commercial Arbitration Act 1984 may do so on summons to be heard on directions day or, if the application is urgent, pursuant to para 9 above.

Proper pleading

11.  It is particularly important in a judge-managed list that the real issues between the parties be exposed in the pleadings. For this reason the requirements of rls 13.02(1)(a), 13.03 and 13.07(1) will be strictly enforced. The attention of pleaders is also drawn to r13.06. Where standard form contracts are pleaded it is sufficient that the term be identified by number. These terms should not be set out in full unless the precise words are of significance.
12.  Evasive pleading is not in accordance with the rules.
13.  The requirements of r13.10 will be strictly enforced. It is the responsibility of the pleader to include in the pleading all necessary particulars. Unless good cause is shown, the costs of providing further particulars, including any request for these, will be borne by the party in default. However, where all necessary and sufficient particulars have been provided by a party, the taking by other parties of pleading points which are proved to be without merit will attract cost penalties.

Division of work between the Building Cases Division and the Practice Court

14.  Judge Shelton has control of every proceeding in the Building Cases Division and ordinarily any directions hearing or application in a proceeding will be held or made to his Honour: r34A.14(1). However, the following procedures have been adopted concerning the division of responsibility between the Practice Court and the Building Cases Division.
From the commencement of a proceeding until the first entry of appearance by a defendant (whether there is only one defendant or whether there are several defendants), any application in a proceeding is to be made to the Practice Court. Thereafter, that is, after the first appearance, any application is to be made to Judge Shelton. Practitioners should be aware that this practice varies from the practice in the Business and Damages Lists.
The judge in charge of the Practice Court is Judge Holt. His Honour’s associate is Neville Watkins (tel 8636 6691).

Orders

15.  The practice of the judge in forwarding orders to the parties within a few days after their making shall continue.

Setting down for trial

16.  It is intended that the procedure adopted in 2002 of fixing a trial date on the occasion of the first directions hearing be continued in 2003. Therefore, it will be necessary for the parties, so far as they are able, to be fully instructed at the directions hearing as to:
(a) availability of witnesses; and
(b) realistic outside estimates of duration of trial.

Building cases users group

17.  His Honour meets from time to time with a users group representing legal and other practitioners concerned with building disputes. Practitioners wishing to offer suggestions for the more efficient conduct of the Building Cases Division may address themselves to any member of this committee. Members are:
  • Richard J Manly SC, Chancery Chambers, Level 26, 200 Queen Street, Melbourne 3000, tel 9600 4333, email manly@chancery.com.au.
  • Leslie M Schwarz, Room 23, 18th Floor, Owen Dixon Chambers West, DX 96 Melbourne, tel 9225 8621, email: ls@alphalink.com.au.
  • AC Neal, Room 308, Joan Rosanove Chambers, 550 Lonsdale Street, Melbourne 3000, tel 9225 7826, email acneal@vicbar.com.au.
  • Elias Giannakopoulos, Giannakopoulos Solicitors, tel 9606 0661, DX 120 Melbourne, email giansol@ozemail.com.au.
  • John R Coghlan, Coghlan Lorich Associates Pty Ltd Building Consultants, PO Box 320, Box Hill 3128, DX 12825 Box Hill, tel 9898 6244, email john_r_coghlan@buildspect.com.au.
  • Jane Hider, C/- Phillips Fox, DX 147 Melbourne, tel 9274 5000, email jane.hider@phillipsfox.com.

Anthony Bastianon
Associate to Judge Shelton
19 December 2002


Damages (Medical) Division

Directions hearings schedule 2003
Timetable for 2003
(Mondays unless otherwise stated)

Month

First

Second

Third

January

28 (Tue)

February

3

17

March

3

17

April

1(Tue)

14

28

May

12

26

June

3 (Tue)

16

30

July

August

4

18

September

1

15

29

October

7 (Tue)

20

November

3

17

December

1

15

2003 dates
1. Court dates
Note: Dates are subject to amendment.

Commence sitting

Monday, 20 January

End sitting

Friday, 19 December

2. Public holidays

New Year’s Day

Wednesday, 1 January

Australia Day

Monday, 27 January

Labour Day

Monday, 10 March

Easter Thursday

Thursday, 17 April

Good Friday

Friday, 18 April

Easter Monday

Monday, 21 April

Easter Tuesday

Tuesday, 22 April

Anzac Day

Friday, 25 April

Queen’s Birthday

Monday, 9 June

Melbourne Cup Day

Tuesday, 4 November

Christmas Day

Thursday, 25 December

Boxing Day

Friday, 26 December

3. School terms

First Term

Starts  

Wednesday, 29 January

Ends  

Friday, 11 April

Vacation  

Monday, 14 April to Friday, 25 April

Second Term

Starts  

Monday, 28 April

Ends  

Friday, 27 June

Vacation  

Monday, 30 June to Friday, 11 July

Third Term

Starts  

Monday, 14 July

Ends  

Friday, 19 September

Vacation  

Monday, 22 September to Friday to 3 October

Fourth Term

Starts  

Monday, 6 October

Ends  

Friday, 19 December

Vacation  

Monday, 22 December to Tuesday, 27 January 2004

Contact information
For any inquiries about the Medical List, please contact Moya O’Brien, associate to Judge Wodak, on tel 8636 6664. The Medical List fax number is 8636 6001.

A. Notes
All directions hearings shall commence at 10am unless otherwise stated. Depending on the volume of business on any one day, all proceedings shall be listed at the one time. Where the number of proceedings to be listed warrants doing so, proceedings will be listed at the rate of 10 per hour.

  1. Practitioners should check the daily lists on the date of each directions hearing to ascertain the court in which the directions hearing is to take place, the commencement time and, where appropriate, the time of listing of the particular matter or matters in which the practitioner has an interest.
  2. Urgent applications may be heard at other times by arrangement with Moya O’Brien, associate to Judge Wodak, on tel 8636 6664. The fax number for the Medical List is 8636 6001.
  3. Opposed applications likely to take in excess of 15 minutes may have to be heard at times fixed with Ms O’Brien. Practitioners are advised to identify such matters in advance of the date of a directions hearing, so that appropriate arrangements can be made for these matters to be heard.
  4. Practitioners are encouraged to have orders made “on the papers” where what is sought is:
    (a) consensual among all relevant parties;
    (b) capable of being dealt with in that manner; and
    (c) clearly and appropriately explained in the documents submitted.
  5. Without purporting to be exhaustive of the types of matters which may be dealt with in this manner, these may include:
    • applications for leave to discover;
    • applications for leave to interrogate;
    • applications for leave to amend the writ and/or pleadings;
    • applications for leave to add parties;
    • applications to adjourn trials (provided that a full explanation of the reasons for the application and proposed consent orders for the further conduct of the proceeding are given); and
    • general directions.

B. The purpose of directions hearings

  1. Directions hearings are the primary means of managing proceedings through the interlocutory steps, generally in the manner prescribed by O.34A.
  2. Specific features of a proceeding, for example pleadings or particulars, duration of trial, the involvement of international and/or interstate witnesses, the use of video conference facilities, the need for an expedited hearing, or venue can all be regulated at scheduled directions hearings or, where appropriate, at urgent directions hearings.
  3. There are two directions hearings scheduled in each month. The first is for general management of proceedings, and the second principally for review of readiness for trial for those proceedings fixed for trial two months next after that directions hearing.
    Practitioners are encouraged to reach accord on matters of general management, and to use the dedicated fax facility to transmit to the associate to the judge in charge of the Division prior to the date of the directions hearing proposed consent orders, signed by all relevant parties or their practitioners. Where that is done in sufficient time for the judge to consider the material, if the proposed orders are satisfactory, the associate will so inform the parties or their practitioners, and no appearance on the day will be required. Authenticated orders will be prepared and sent to the parties or their practitioners.
  4. Discovery and interrogation is by leave, and schedules of proposed discovery and draft interrogatories should be submitted to the judge prior to or at the directions hearing.
  5. As a guide to practitioners and litigants, the following may be of assistance.
    (a) Discovery
    Where liability is in issue, discovery of treatment records, diagnostic and investigative materials and reports and hospital records will generally be permitted. Discovery of material relevant to quantum such as invoices, accounts, notices of taxation assessment and taxation returns will be permitted.
    Where liability is admitted, discovery of material relevant to quantum, as above will generally be permitted.
    (b) Interrogation
    Where liability is in issue, interrogation as to matters genuinely in issue as to liability for example, what advice or warnings were given, and when, or as to the relationship between a defendant medical practitioner and a defendant institution, but not where the plaintiff alleges that a medical practitioner performed an operation, whether the medical practitioner did perform that procedure (unless that is really in dispute).
  6. In every case, interrogation of the plaintiff or, where appropriate, of the litigation guardian as to matters which go to proof of quantum will be permitted, but not, for example, questions with numerous sub parts which inquire as to the frequency and intensity of symptoms in each toe of the left foot.
  7. The use of mediation and forms of alternative dispute resolution, formal or informal, will continue to be encouraged. Parties are encouraged to reach accord about the conduct of such matters. Where necessary, directions and orders will be made, including the exercise of the Court’s power to order mediation, although the emphasis will be on encouraging the parties to seek mediation consensually.
    It is important that alternative dispute resolution be conducted at the appropriate time or times in each proceeding. As a general proposition, the parties and the practitioners are best able to gauge whether and when it is appropriate to subject a particular proceeding to this process.
  8. Practitioners are asked to approach trial dates with responsibility, and with the clear understanding that trial by ambush is not permitted. That means that opinions on liability, where that is in issue, will as a general rule not be permitted to be used in evidence where compliance with the Rules and any orders has not occurred, with respect to service of such opinions on opposing parties.
    If a late obtained opinion is sought to be relied on, it should be given to opposing parties as soon as obtained, with a request that the opposing parties consider whether objection will be taken to late service. If so, an urgent application should be made to the judge in charge of the Division for leave to rely on that opinion before the trial date. A full explanation on affidavit for the late reliance sought should be served and filed in support of the application for leave. Any party opposing the reliance sought should serve and file an answering affidavit, dealing specifically with any prejudice alleged to result from leave to rely on the late material, if granted.
    It should be appreciated that late provision of expert opinion is neither condoned nor encouraged by what has been expressed above, and the primary position remains one of expecting parties to adhere to times prescribed at all times. It should not be assumed that leave will be granted to rely on late material by vacating the trial date and imposing costs penalties, but rather that unless the Court is persuaded otherwise, leave to rely on late material may be refused.
  9. The general philosophy for management of the Division will be on practicality, consensus and cooperation, ensuring that the issues in contention are clearly and as precisely as possible identified, to enable proceedings to be made ready and fixed for trial, and tried as expeditiously and efficiently as possible, thereby minimising costs and delays to the parties.

C. Applications for approval of compromise
An application for approval of a compromise of a proceeding in the Damages (Medical) Division prior to the commencement of the trial of the proceeding should be made to the judge in charge of the Division on affidavit.

After the commencement of a trial, an application for approval of a compromise should, subject to any order or direction of the trial judge to the contrary, be made on affidavit or, if so directed, orally to the trial judge. If it is inappropriate for the trial judge to hear and determine the application for approval of a compromise, such application should be made to the judge in charge of the Division, or such other judge as is nominated by the judge in charge of the Division.

Judge T Wodak
16 December 2002

Magistrates’ Court

Cite as: (2003) 77(3) LIJ, p.67

Applications for bail after committal for trial
Practice Direction No 3 of 2002

Background
Changes in County Court case management have resulted in the need to update Practice Note No 4 of 1999. That practice note is hereby revoked.

New practice note
Practitioners are advised that the Magistrates’ Court will continue to entertain applications for bail, variation and revocation of bail after committal for trial up to case conference or directions hearing in the County Court, after which any such application should be made to the County Court.

This practice direction has effect from 1 January 2003.

Ian L Gray
Chief Magistrate
16 December 2002

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