Vikram Misra, Barrister at Clarence Chambers, continues his series into practice and procedure. In this article, he discusses why practitioners should be aware of the recent changes to Supreme Court Practice Note SC Eq 12. Follow the series here.
Practitioners should be aware of the recent changes to Supreme Court Practice Note SC Eq 12. The new version of the Practice Note was issued on 17 August 2023 and commenced on 18 August 2023, replacing the previous version of the Practice Note issued on 21 March 2019. Practitioners should note the following changes.
Commencing Proceedings and Alternative Dispute Resolution
- It is expected that prior to the commencement of proceedings in the List, the parties will have considered referral of their dispute to mediation or another alternative dispute resolution process. It is also expected that the lawyers, or the litigant, if not legally represented, will be in a position to advise the Court on the first return date of the Summons whether:
(a) the parties have attempted some alternative dispute resolution; and
(b) their respective clients are willing to proceed to some alternative dispute resolution at an appropriate time.
Orders in Chambers/Consent Orders
- Parties must confer in advance of the listing date and make every effort to agree upon suitable consent orders. To facilitate the just, quick and cheap resolution of matters, appropriate consent orders will be made by the List Judge in Chambers where they have been provided to the List Judge’s Associate on any day before 12 noon on the Thursday before the relevant Friday List. Executed consent orders should be sent to Chambers in both Microsoft Word (.docx) and Adobe Acrobat formats (.pdf). If appropriate, orders will be made in Chambers and the parties notified.
- When consent orders are to be made either in Chambers or in Court varying a timetable, those orders must include the vacation of any date for directions hearings or the hearing of Motions that the parties no longer wish to maintain, and the allocation of a future listing date.
- If agreement cannot be reached or parties have not been notified that orders have been made in Chambers, the matter will remain listed for directions and parties are required to attend in person.
- Any application for leave to appear in the List via video link or conference telephone must be made to Chambers in writing, with reasons and evidence where appropriate, before 12 noon on the Thursday before the Friday List. Unless parties are notified that leave has been granted by the List Judge, parties are required to appear in person. To facilitate the efficient running of the List, matters where video link or conference telephone appearance has been granted may be placed at the end of the List.
- If proceedings settle prior to any listing, orders disposing of the proceedings will be made by the List Judge (including in Chambers). Any Terms of Settlement and/or Notices of Discontinuance should be emailed to the List Judge’s Associate.
Seeking Leave to File an Interlocutory Application (except for applications for substituted service)
- Leave must be obtained from the List Judge, in which case the motion will be listed in a Friday List, or before the Registrar if within the Registrar’s delegation and can be heard within 2 hours. Leave can be sought from the List Judge at a directions hearing on Friday or, where urgent, by email to the List Judge’s Associate.
- When leave is sought, parties should be prepared to provide the List Judge with a proposed timetable for the motion to be heard and whether a court book and submissions would assist the Court.
Strike Out Applications/Applications for Summary Judgment
- As a general rule, applications to strike out or for summary judgment will not be entertained. Sometimes applications are appropriate, but parties should expect strictness in declining to entertain such applications.
Hearings
- Hearing dates are not allocated in Chambers and parties are expected to confer regarding a realistic estimate of the hearing length and common available hearing dates before they appear before the List Judge.
- Generally hearing dates will only be allocated after evidence is complete.
The Usual Order for Hearing (Annexure A) has been changed to the following (bringing it in line with the recent changes to SC Eq 1)
- Unless the Court otherwise orders, the Court Book need not be electronic. If the Court Book is to be electronic, Practice Note SC Gen 7 will apply. The Trial Judge may also request a hard copy in any event. The Court may order that the sections of the Court Book described below comprise of separate PDF bundles, each separately paginated and each bookmarked.
- By no later than five (5) working days before the trial date, the parties are to provide to the Associate to the Trial Judge, two copies of a Court Book which is to contain, in separate sections:
(a) latest process and pleadings;
(b) submissions (including chronologies and lists of authorities) and any objections which are essential;
(c) affidavits (excluding annexures and exhibits which consist of primary documentation);
(d) documentary evidence – which is to be placed in chronological sequence so far as is practicable and consecutively numbered (without tabs unless the Court otherwise directs). If there are a significant number of emails, the chains should be dismembered and placed in chronological sequence; and
(e) expert evidence.
3. A physical Court Book must be in working ring-binder folders, none of which is to be filled beyond its reasonable working capacity, and the documents are to be accurately hole-punched.
4. The affidavits are to be annotated to the Court Book so that documents referred to, annexed or exhibited to an affidavit must be referenced to the place where the document is in the chronological section of the Court Book.
5. Not more than one index should be provided.
6. By no later than two (2) working days before the trial date, the parties must cause to be filed and served a short outline of submissions, a chronology of relevant events, any objections to evidence that are essential and a list of authorities.
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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) and (SA) sections of the looseleaf Commercial Arbitration Law & Practice Service for Thomson Reuters. You may connect with Vikram via email counsel@vikrammisra.com or LinkedIn