Practice and Procedure Part 4: Interlocutory Skirmishes and the Overriding Purpose of the Civil Procedure Act 2005 (NSW)

Vikram MisraVikram Misra, Barrister at Clarence Chambers, continues his series into practice and procedure. In this article, he provides practical guidance for approaching interlocutory matters. Follow the series here.


In Ken Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 [No 5] [2014] NSWSC 437, Kunc J provided guidance on how parties and their lawyers should approach interlocutory matters in the course of proceedings.

In all cases except where there is a real basis for the urgent filing of a motion, his Honour noted that:

Having regard to s 56 of the Civil Procedure Act, parties to proceedings and their lawyers are required to engage in prompt, courteous and genuine cooperation (including the provision of reasonably required information or explanations) with the firm intention of resolving interlocutory issues, as far as possible, without involving the processes of the Court. If complete resolution is not possible, then the parties’ conduct should at least ensure that only those issues that are really in dispute are submitted for adjudication as unduly technical and costly disputes about non-essential issues are clearly to be avoided[i].

Nine points of practical guidance for approaching interlocutory matters were given at [69] to [77]:

Firstly, s 56 of the Civil Procedure Act 2005 (NSW) (“the Act”) and its related provisions are not just pious exhortations to be acknowledged and then ignored. His Honour stressed that they have real consequences for the clients and lawyers and are to be applied rigorously in the conduct of all litigation, great or small.

Secondly, solicitors and barristers are members of a profession. It is of the essence of a profession that relations between its members are characterised by civility, trust and mutual respect. His Honour noted that the Court sees far too much correspondence between lawyers that bears none of those qualities, which must never be abandoned at the behest of clients or in the misguided belief that that is what successful representation of a client requires.

Thirdly, many interlocutory issues can be solved or at least better understood by a simple telephone call.

Fourthly, if one party requires information or an explanation from another, then the request should be reasonable and focused. A clear justification for the request should be given.

Fifthly, when faced with a reasonable request, the recipient should not automatically respond with an unthinking denial of legal entitlement to the information. His Honour stated that, “the obligation to facilitate the overriding purpose will sometimes require information or an explanation to be given to which the party may not be “legally” entitled”. Further, if it is information which would be required to be produced in response to a subpoena or notice to produce then it is contrary to the s 56 obligations of a party and that party’s lawyers to resist providing it unless and until the Court’s process is invoked. His Honour noted that, “if there is concern for the confidence of such material then an undertaking of the kind considered in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (which would apply if the information were provided under compulsion) should be sought and given”.

Sixthly, the filing of a motion should be regarded as a last resort as it will inevitably add to costs, and delay the progress of the matter to hearing.

Seventhly, no motion should be filed without the respondent being given final, written notice of the relief to be sought, the reason for it and a reasonable opportunity to respond. His Honour stated:

The Court sees far too many examples of deadlines of a day or less being set in correspondence. My own view, as a rule of thumb, is that three clear business days is reasonable to allow for a response on any matter of substance. If the recipient requires more time to obtain instructions, then they should send a prompt request with an explanation to that effect and an indication of when a proper reply will be provided. In relation to challenges to pleadings it was once the practice for opposing counsel to confer before a strike out motion was filed. To the extent that practice has been lost, it should resurrected.

Eighthly, once a motion is filed, the parties are obliged to ensure that only the real or essential issues are litigated. This calls for discrimination in both the preparation of evidence and argument. As to the former, real thought must be given to the precise evidence required. His Honour noted that, “the practice of exhibiting “everything” or “the file” to provide an evidentiary cornucopia from which only a few morsels are ultimately selected to be referred to in argument is completely unacceptable”. Where it becomes apparent that an application or argument is unsustainable, it should be abandoned, and that abandonment notified to the other parties, at the earliest opportunity.

Ninthly, where delay or unnecessary expense has been caused by conduct which is contrary to the obligations of parties and their lawyers under s 56 and its related provisions, parties and lawyers should not be in any doubt that in appropriate cases the Court will exercise its power in relation to costs to provide some measure of justice in response to such conduct.

These nine points of practical guidance should be read in conjunction with the relevant list’s practice note, for example, leave is required to file motions in the Real Property List in the Equity Division of the Supreme Court of NSW.

[i]Citing: Expense Reduction and Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 303 ALR 199; (2013) 88 ALJR 76 at [57].

Vikram Misra was admitted as a solicitor in 2012 and called to the NSW Bar in 2015. He maintains a broad commercial practice and is regularly briefed in matters relating to taxation law, property law, construction law and equity. Vikram has completed a Graduate Diploma in Taxation Law at the University of Sydney in 2015 and a Master of Laws majoring in construction law and contract law at the University of Melbourne in 2016. Vikram is also a contributing author to the Security of Payment (NSW) section of the looseleaf Commercial Arbitration Law & Practice Service for Thomson Reuters. You may connect with Vikram via email or LinkedIn

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