Practice Direction Number 18 of 2018

Supreme Court of Queensland

 

Efficient Conduct of Civil Litigation

SUMMARY

The Uniform Civil Procedure Rules 1999 (Qld) (UCPR) are a set of rules and regulations to be applied during civil proceedings in the Supreme Court, District Court and Magistrates Courts in Queensland. These rules dictate, among other things, the procedure to be followed when bringing a matter in any of the above-mentioned courts.

One regulation in particular – Rule 5 – provides the overriding obligations of the parties and the court and outlines the purpose of the UCPR:

(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Designed to complement the existing legislation, the Supreme Court Practice Directions are written by judges of the Supreme Court and provide guidelines for practitioners and parties.

The Supreme Court of Queensland Practice Direction Number 18 of 2018, published last Friday, focuses on methods to achieving more efficient conduct of civil litigation. The Direction concentrates mostly on the efficient management of documents, with suggestions including:

  • The creation of document plans and a document management protocol to be revised and developed when possible;
  • The creation of a Resolution Bundle containing only documents likely be to be beneficial in resolving the case;
  • Early admission and exchange of facts and documents which should not be in contention;
  • Preparing a summary of the real issues in dispute; and
  • The creation of a reliable trial plan.

The above points are encouraged to be completed in the presence of all parties through in person, video or telephone conferences.

The Practice Direction also endeavours to advocate for the avoidance of excessive printing and copying, and the utilisation of technology where possible.

COMMENT

Some would say this Practice Direction, penned by Supreme Court Chief Justice Catherine Holmes, with a focus on methods to improve the efficiency of civil litigation, is aspirational.  A good thing.

Holmes CJ begins by commenting that often, the real issues to be tried are not identified and narrowed until the eve of or during the trial, which appears to imply departure from Rule 5 requirements often enough.

The Practice Direction encourages the creation of document plans, resolution bundles and trial plans, all by way of conferences between the parties. All legal practitioners and representatives from each party are expected to attend, with the possibility of a mediator of sorts to facilitate unprejudiced conversation.

While this is good and may reduce the length and cost of civil litigation, with many civil dispute parties being combative and hostile, we will see how the Direction will operate over time. It is often a struggle to have parties, or their representatives, involved in conversations to discuss pressing and crucial matters; at times a request they confer with lawyers to better prepare documents is not seen by clients as productive, rather as running up costs.

The Direction’s message has many positives – only documents directly relevant to the issues in dispute should be searched for, archived and exchanged to minimise costs. Some points, such as relief from the duty of disclosure until otherwise ordered and the utilisation of technology to decrease paper waste, are certainly palpable and achievable. Facts and documents which are not in contention should be admitted well before the trial and summaries of the real issues in dispute should be exchanged. If these practices are not already being carried out, this Direction serves as a useful reminder.

This philosophy is reiterated by a recent Supreme Court case, John Holland Pty Ltd v Adani Abbot Point Terminal Pty Ltd (No 2) [2018] QSC 48, wherein an application for leave to appeal under the Commercial Arbitration Act 1990 (Qld) was so lengthy that is was considered oppressive. Rule 5 of the UCPR expressly provides that a party impliedly undertakes to the court to proceeding in an expeditious way with a matter. An application that is unnecessarily long is a waste of time, and not expeditious at all. The oppressive nature of the application in this case resulted in the failed applicant paying the respondent’s costs, to be assessed on an indemnity basis. Perhaps such a situation could have been avoided with the application of this Practice Direction.