CASE MANAGEMENT OF CIVIL PROCEEDINGS IN THE LOCAL COURT

Transcription

1 Lcal Curt f New Suth Wales Practice Nte Civ 1 Issued pursuant t sectin 15 f the Civil Prcedure Act 2005 (CPA) And pursuant t sectin 27 Lcal Curt Act 2007 COMMENCED: 23/3/2011 REISSUED: 7/1/2013 AMENDED: 4/3/2013 CASE MANAGEMENT OF CIVIL PROCEEDINGS IN THE LOCAL COURT 1 Cmmencement Applicatin Intrductin... 1 PART A GENERAL PROVISIONS Directins General adjurnments Representatin Dismissal Alternative Dispute Reslutin Transfer between Small Claims Divisin and General Divisin Change f Venue... 2 PART B GENERAL DIVISION CASE MANAGEMENT General principle Standard directins First call-ver Secnd call-ver/directins hearing Review Ntices f mtin Vacating a trial date Appearances by telephne r audi-visual link (AVL) at the trial... 5 PART C SMALL CLAIMS DIVISION CASE MANAGEMENT General principles Pre-trial Review Ntices f mtin Vacating a trial date Trial Appearances by telephne r audi-visual link (AVL) at the trial... 7 PART D SUBPOENAS AND APPLICATIONS FOR DISCLOSURE OF DOCUMENTS Issuing subpenas Seeking leave t issue a subpena Access t Subpenaed Dcuments Applicatins fr disclsure f dcuments. 9 PART E EXPERT EVIDENCE Leave t adduce expert evidence General Divisin - Single expert General Divisin - Jint experts reprt Small Claims Divisin Single expert Tendering expert reprts at the hearing. 11 PART F - COSTS Csts at the end f a trial Guideline Amunts PART G MAXIMUM COSTS ORDERS IN THE GENERAL DIVISION PART H PRE-JUDGMENT INTEREST Annexure A General Divisin Standard Directins Annexure B Civil Listing Advice Annexure C Pre-Trial Review Sheet Annexure D Small Claims Divisin Case Management Order

2 1 Cmmencement 1.1 This practice nte cmmences n 7 January Applicatin 2.1 This practice nte applies t civil prceedings in the Lcal Curt. 3 Intrductin 3.1 The purpse f this practice nte is t update Practice Nte Civ 1 dealing with matters relevant t the management f civil prceedings. 3.2 The fllwing abbreviatins are used in this practice nte: CPA means the Civil Prcedure Act 2005 ADR means alternative dispute reslutin (including mediatin under Part 4 f the CPA and arbitratin under Part 5 f the CPA) LCR means the Lcal Curt Rules 2009 UCPR means the Unifrm Civil Prcedure Rules This practice nte describes the practice f the Lcal Curt in managing civil prceedings s as t achieve the just, quick and cheap reslutin f the real issues in the prceedings: s 56(1) CPA. 3.4 The curt s time standards aim t finalise 90% f civil prceedings within 6 mnths f cmmencement and 100% within 12 mnths. Parties must plan t meet these time standards. 3.5 The curt by this practice nte seeks t give effect t the verriding purpse f the CPA and t the finalisatin f all civil prceedings within the curt s time standards. 3.6 A party t civil prceedings is under a duty t assist the curt t further the verriding purpse and, t that effect, t participate in the prcesses f the curt and t cmply with the directins f the curt: s 56(3) CPA. 3.7 This practice nte is structured as fllws: Part A General prvisins Part B General Divisin case management Part C Small Claims Divisin case management Part D Subpenas and applicatins fr disclsure f dcuments Part E Expert evidence Part F Csts Part G Maximum csts rders in the General Divisin Part H Pre-judgment interest PART A GENERAL PROVISIONS 4 Directins 4.1 The Curt may give such directins as it thinks fit fr the speedy determinatin f the real issues between the parties t the prceedings. 1

3 5 General adjurnments 5.1 N prceedings are ever std ver generally: see s 66(1) CPA. 6 Representatin 6.1 Where a party is legally represented, the legal representative (r their agent) must appear n behalf f the party at a Pre-trial Review, Call-ver and Review. 6.2 The legal representative must have sufficient instructins t make and cnsider ffers f settlement and t enable the Curt t make all apprpriate rders and directins. 6.3 If prceedings are adjurned due t a legal representative being insufficiently instructed a csts rder may be made against the party. 7 Dismissal 7.1 If within 9 mnths after a statement f claim has been filed: (a) (b) (c) A defence r crss claim is nt filed, r A default judgment is nt entered, r The prceedings are nt therwise dispsed f, the prceedings are n the Curt s wn mtin and rder dismissed: UCPR 12.9(2). 7.2 The curt will nt dismiss prceedings under UCPR 12.9 if there are any ntices f mtin r ther applicatins in the prceedings that have yet t be determined: UCPR 12.9(4). 8 Alternative Dispute Reslutin 8.1 The curt may at any stage refer prceedings t ADR including n the first date the prceedings are listed befre the curt. 8.3 The curt may refer prceedings t mediatin with r withut the cnsent f the parties. 8.4 The curt will nly refer prceedings t arbitratin where there are n cmplex issues f fact r law and the hearing is estimated t take 3 hurs r less. 8.5 The curt will nt refer prceedings in the Small Claims Divisin r prceedings invlving allegatins f fraud t arbitratin unless special circumstances exist r the parties cnsent: UCPR Transfer between Small Claims Divisin and General Divisin 9.1 The curt may transfer prceedings frm the Small Claims Divisin t the General Divisin where it cnsiders that the prceedings shuld be cnslidated with ther prceedings already cmmenced in the General Divisin. 10 Change f Venue 10.1 An applicatin t change the venue under UCPR Part 8 must be made when the defence is filed, r at such ther time as the curt allws The curt will nt change the venue t anther venue that is less than 100 kilmetres frm the riginating venue unless satisfied that there are exceptinal circumstances The ntice f mtin must specify the venue t which the applicant seeks the prceedings t be changed. It must be supprted by an affidavit that: 2

4 Addresses the matters cntained in UCPR r 8.2 Sets ut the reasns why the party is seeking t change the venue If relevant, includes material in supprt f any assertin f exceptinal circumstances The registrar will list the prceedings fr either a call-ver r a pre-trial review within six weeks and will send a cpy f the defence, the ntice f mtin and the affidavit t all ther active parties If anther party bjects t the change f venue then the party may, within 14 days f receiving the ntice f listing, file and serve an affidavit utlining the reasns why the party says the venue shuld nt be changed Unless the curt therwise rders, a ntice f mtin fr change f venue will be determined: After 14 days frm the date that the ntice f listing was sent In the absence f the parties Where the curt decides t change the venue, the registrar at the riginating venue will: Vacate any listings at the riginating venue Re-list the prceedings at the new venue Advise the parties f the new listing arrangements Where the curt decides that the venue nt be changed the registrar will: Advise the parties Cnfirm the listing at the riginating venue Unless the curt therwise rders, the maximum csts rder that the curt will allw n the ntice f mtin is $150 in relatin t prceedings in the Small Claims Divisin and $300 in relatin t prceedings in the General Divisin. PART B GENERAL DIVISION CASE MANAGEMENT 11 General principle 11.1 The curt will case manage the prceedings having regard t the bjects specified in s 57(1) CPA. 12 Standard directins 12.1 The prceedings will be listed fr a first call-ver within six weeks f the date n which the first defence is filed The curt will advise the parties f the date f the first call-ver and send them a cpy f the standard directins (see Annexure A f the practice nte) Unless the curt therwise rders, the parties must cmply with the standard directins. 13 First call-ver 13.1 The curt will give directins designed t assist in the speedy determinatin f the real issues between the parties t the prceedings. These may include: Making rders under CPA Part 6 Allcating a date fr return f subpenas 3

5 Referring the prceedings t mediatin r arbitratin Directing the parties t cmplete a civil listing advice (see Annexure B f the practice nte) that must be filed in curt n the next listing date The curt may set a trial date and a review date If the curt des nt set a trial date and a review date then it will list the prceedings fr a secnd call-ver. 14 Secnd call-ver/directins hearing 14.1 The secnd call-ver will be held within 28 days f the first call-ver At the secnd call-ver, the curt will: Fix a trial date and a review date Give such directins as are necessary t assist in the speedy determinatin f the real issues between the parties t the prceedings 14.3 If the parties are nt ready t take a trial date then the prceedings will be set dwn fr a directins hearing befre a magistrate Unless the curt rders therwise, the directins hearing will be take place within 14 days f the secnd call-ver. 15 Review 15.1 Unless the curt therwise rders, the review will be listed apprximately fur weeks befre the trial date Where the parties are legally represented, the legal representative fr each party must file in curt and serve a cmpleted and signed civil listing advice (Annexure B) 15.3 The curt will: Inquire whether the curt s directins have been cmplied with Inquire whether the prceedings are ready fr trial Satisfy itself as t the accuracy/apprpriateness f the time estimates given in the civil listing advice If the curt s earlier directins have nt been cmplied with then the curt may make such rders as it cnsiders apprpriate including: Dismissing the prceedings r a crss claim Striking ut a defence Making a csts rder If a party has nt served evidence in accrdance with the standard directins r ther rder f the curt, then the curt may allw further time t serve the evidence n cnditin that if the evidence is nt served within that further time, the party will nt be able t rely n the evidence in chief at the hearing withut leave f the curt The curt may impse limits n the time t be taken at the trial fr: Opening addresses Presentatin f a party s case including crss-examinatin Clsing addresses. 4

6 15.6 A party may nt exceed these time limits unless special circumstances exist and the curt gives leave t d s. 16 Ntices f mtin 16.1 Parties must file any ntices f mtin as sn as practicable A ntice f mtin will be listed in the general mtins list n the first available date and the parties must be ready t deal with the ntice f mtin n that date Parties will nt be permitted t crss-examine witnesses at an interlcutry hearing unless they can demnstrate that there are cgent and cmpelling reasns fr ding s having regard t the principles set ut in CPA Part 6, Divisin Vacating a trial date 17.1 A party wh wishes t vacate a trial date must file a ntice f mtin nt less than 21 days prir t the trial date A party may apply t vacate a trial date within 21 days f the trial date if unfreseen circumstances arise (e.g. a witness becmes ill). The ntice f mtin: Must be filed as sn as practicable and nt later than the next wrking day after the party becmes aware f the unfreseen circumstances May be filed withut waiting t btain the cnsent f the ther party. 18 Appearances by telephne r audi-visual link (AVL) at the trial 18.1 Any applicatin fr a party r a witness t be given leave t appear by telephne r AVL at the trial must be made at the time the prceedings are listed fr hearing If leave is granted fr a party r a witness t appear by telephne r AVL then the party wh sught leave is respnsible fr: If relevant, bking the remte AVL facility, paying any csts assciated with the use f the AVL and arranging fr the attendance f the party r the witness at that facility If relevant, arranging fr the party r the witness t telephne the curt at the relevant time during the trial Prviding the party r the witness with a cpy f any affidavits r dcuments t which the party r the witness may be referred while giving his r her evidence. PART C SMALL CLAIMS DIVISION CASE MANAGEMENT 19 General principles 19.1 The curt will case manage the prceedings having regard t the bjects specified in s 57(1) CPA The curt will cnduct prceedings in the Small Claims Divisin with as little frmality and technicality as the prper cnsideratin f the prceedings permit. 20 Pre-trial Review 20.1 The prceedings will be listed fr pre-trial review within six weeks f the date n which the first defence is filed The curt will advise the parties f the date f the pre-trial review. 5

7 20.3 The bjective f the pre-trial review is t prvide an pprtunity fr the curt t assist the parties t settle their dispute Parties must attend in persn r, if legally represented, the legal representative must attend and have authrity t settle the dispute The curt may refer the parties t mediatin If the prceedings d nt settle at the pre-trial review then the parties must: Identify the issues in dispute and disclse, as far as is knwn, the witness statements and dcuments upn which they prpse t rely at the hearing Cmplete the pre-trial review sheet (Annexure C f the Practice Nte) and file it in curt at pre-trial review Any interlcutry applicatins (including t issue a subpena) and any applicatin t rally examine at witness at the trial must be made at the pre-trial review When deciding whether t rder a witness t attend the trial t be rally examined, the curt will cnsider: The particular circumstances f the case, including the amunt invlved Whether there is a real issue as t credibility Whether there is a significant cnflict in the evidence The curt will generally make the case management rder cntained in Annexure D f the Practice Nte If a party des nt file and serve dcuments r witness statements in accrdance with the case management rder, the party will nt be able t rely n thse dcuments r witness statements at the hearing withut leave f the curt. 21 Ntices f mtin 21.1 Unless the rules therwise prvide, r leave is granted by the curt, interlcutry applicatins in Small Claims prceedings are t be made rally at the pre-trial review: LCR r Vacating a trial date 22.1 A party wh wishes t vacate a trial date must file a ntice f mtin nt less than 21 days prir t the trial date A party may apply t vacate a trial date within 21 days f the trial date if unfreseen circumstances arise (e.g. a witness becmes ill). A ntice f mtin: 23 Trial Must be filed as sn as practicable and nt later than the next wrking day after the party becmes aware f the unfreseen circumstances May be filed withut waiting t btain the cnsent f the ther party A frmal trial, that is, the nrmal adversarial trial where ral evidence is taken n ath, and witnesses are crss-examined is nt available in the Small Claims Divisin Subject t any directin f the curt, parties d nt have the right t call a witness t give evidence, t crss-examine a witness r t give ral evidence at the hearing. 6

8 23.3 Prceedings will be heard and determined in pen curt n the basis f the dcumentary evidence that has been served and filed in accrdance with the case management rder. If evidence is nt served and filed within the time directed then the party will nt be able t rely n the evidence withut leave f the curt Where a directin has been made that a witness is t attend fr crss-examinatin, the party relying n the statement f the witness as evidence in chief is respnsible fr securing the attendance f the witness fr crss-examinatin. The prceedings will be heard and determined n the ral evidence tgether with the dcumentary evidence that has been filed and served in accrdance with paragraph Parties may attend, make cmments, present arguments and make final submissins n the evidence The prcedure at the trial f the prceedings will be determined by the magistrate r assessr as he r she thinks fit. 24 Appearances by telephne r audi-visual link (AVL) at the trial 24.1 Any applicatin fr a party r a witness t be given leave t appear by telephne r AVL at the trial must be made at the time the prceedings are listed fr hearing If leave is granted fr a party r a witness t appear by telephne r AVL then the party wh sught leave is respnsible fr: If relevant, bking the remte AVL facility, paying any csts assciated with the use f the AVL and arranging fr the attendance f the party r the witness at that facility If relevant, arranging fr the party r the witness t telephne the curt at the relevant time during the trial Prviding the party r the witness with a cpy f any affidavits r dcuments t which the party r the witness may be referred while giving his r her evidence. PART D SUBPOENAS AND APPLICATIONS FOR DISCLOSURE OF DOCUMENTS 25 Issuing subpenas 25.1 Parties must issue subpenas as early as pssible s that dcuments can be prduced and inspected, and be available fr the prper preparatin f the case, including engaging any expert witnesses. 26 Seeking leave t issue a subpena 26.1 Litigants in persn and parties in Small Claims Divisin prceedings need the leave f the curt t issue a subpena (UCPR 7.3) An applicatin fr leave t issue a subpena in the Small Claims Divisin must be made at the pre-trial review A litigant in persn may seek leave t issue a subpena either rally befre the curt r by ldging the fllwing dcuments with the registry: A cpy f the subpena A letter setting ut the reasns why leave is sught t issue the subpena If a persn is seeking leave t issue a subpena t give evidence, the letter must explain why the subpenaed persn s evidence wuld be relevant. If a persn is seeking leave t issue a subpena t prduce, the letter must explain why the dcuments wuld be relevant. 7

9 26.5 The registrar will cnsider the applicatin in the absence f the public (usually within 24 hurs f it being ldged) and advise the applicant f his/her decisin. 27 Access t Subpenaed Dcuments 27.1 The curt will make an rder abut wh may access dcuments that are prduced n subpena The issuing party may prpse an access rder by cmpleting the Prpsed access rder sectin f the Subpena t prduce with subpena ntice and declaratin (frm 26A) r the Subpena t give evidence and prduce with subpena ntice and declaratin (frm 27A) If the issuing party des nt prpse an access rder then the fllwing default access rder will apply: General access t all parties including phtcpy access 27.4 Wherever pssible, a subpena t prduce shuld seek the prductin f cpies rather than riginal dcuments The prducing party must return a cpy f the subpena with the dcuments r things that are prduced t the curt under the subpena Where a large vlume f material is prduced t the curt and inspectin cannt cnveniently be carried ut in the registry, the curt may rder the parties t: Arrange a lcatin where the dcuments can be securely stred and inspected Organise and pay fr the secure transprtatin f the dcuments t and frm that lcatin Inspect the dcuments at that lcatin The subpena can be std ver t anther return date if: Sme r all f the dcuments r things have nt been prduced by the return date The prducing party and the parties t the prceedings cannt agree as t the terms f an access rder There is a pending applicatin in relatin t the subpena The registrar will set a new return date if: The issuing party and prducing party cannt agree n the date. Neither the issuing party nr the prducing party appears n the return date, the subpena has nt been cmplied with r fully cmplied with and the issuing party applies fr a new date in writing within 7 days f the return date. The issuing party must ntify all ther active parties f the new return date When the curt n lnger requires the subpenaed material, it will: Return riginal material r material that is a mix f riginal and cpied material t the prducing party Securely destry any cpied material A party cannt access prduced dcuments until the curt has made an rder allwing the party t access the dcuments The curt will make access rders each day in relatin t: 8

10 Dcuments and items that have been prduced t the registry befre the clse f the business day befre the return date Dcuments and items that are prduced in curt n the return date where the prducing party has n bjectin t the prpsed access rder and n ther party appears t bject t the prpsed access rder Unless the curt therwise rders, an access rder will be made in accrdance with: The prpsed access rder The default access rder if there is n prpsed access rder The access rder includes permissin t phtcpy the dcuments Cntested subpena applicatins will be listed befre the registrar. 28 Applicatins fr disclsure f dcuments 28.1 The Curt will nt make an rder fr disclsure f dcuments (disclsure) [e.g. discvery r where there is an assertin that there has been inadequate cmpliance with a subpena r a ntice t prduce] until the parties have served their evidence, unless there are exceptinal circumstances necessitating disclsure N rder fr disclsure will be made unless it is necessary fr the reslutin f the real issues in dispute in the prceedings Unless the curt therwise rders, a ntice f mtin seeking an rder fr disclsure must be filed and served n later than 14 days after the evidence has been served Any applicatin fr an rder fr disclsure, cnsensual r therwise, must be supprted by an affidavit setting ut: The reasn why disclsure is necessary fr the reslutin f the real issues in dispute in the prceedings The classes f dcuments in respect f which f which disclsure is sught The likely cst f such disclsure The curt may impse a limit n the amunt f recverable csts in respect f disclsure. PART E EXPERT EVIDENCE 29 Leave t adduce expert evidence 29.1 N expert evidence can be adduced withut leave f the curt Befre the parties seek leave t adduce expert evidence, they must discuss: The areas in which expert evidence is required Whether they can agree n a single expert in relatin t each area f expertise r they wish t retain their wn expert Parties must advise the curt f the result f their discussins when they seek leave t adduce expert evidence. 30 General Divisin - Single expert 30.1 A single expert shuld be used wherever pssible. 9

11 30.2 If the parties agree n a single expert and the curt gives leave t appint the expert then the parties must prmptly engage and brief the single expert The single expert must send a cpy f his r her reprt t each party, thrugh their legal representatives The parties may ask the single expert t prvide a supplementary reprt taking int accunt any new r mitted factual material Unless the curt therwise rders, a party may put a maximum f 10 written questins t the single expert fr the purpse f clarifying matters in the reprt. The expert must answer the questins within 14 days Unless the parties agree r the curt therwise rders, the single expert s fees are t be paid equally by all f the parties 31 General Divisin - Jint experts reprt 31.1 Where parties cannt agree n a single expert, the curt may give leave fr each party t call their wn expert witness The experts are t prepare a jint reprt utlining the issues in dispute and nt in dispute Where a jint reprt is prepared then the parties shuld expect that the experts will give their evidence cncurrently at the hearing unless the curt therwise rders Parties must serve experts' reprts in accrdance with UCPR Small Claims Divisin Single expert 32.1 If the curt gives leave t adduce expert evidence, then the fllwing directins are taken t have been made unless the curt therwise rders: Within 14 days f leave being given t adduce expert evidence, the parties must agree n the single expert witness t be retained and btain that expert s cncurrence If the parties cannt agree n a single expert witness and btain that expert s cncurrence within 14 days, then the parties must immediately ntify the curt, which will then appint a single expert. Within 14 days after the single expert witness has been selected r appinted, the parties must: Agree n hw the expert is t be briefed, ensuring that the expert will be briefed with sufficient material t enable him r her t prepare a reprt. Brief the expert in the agreed manner. If the parties cannt agree n hw the single expert witness is t be briefed, they must immediately ntify the curt, which will then give directins abut hw the single expert is t be briefed. The single expert witness must prvide his r her reprt t the parties within 21 days n which the single expert witness was briefed. The single expert witness may be requested t prvide a supplementary reprt that takes int accunt any new r mitted factual material. Any party may, subject t all just exceptins and s.177 f the Evidence Act 1995: Tender the single expert witness reprt/s Crss-examine the single expert witness. 10

12 A single expert witness s fee fr preparatin f the reprt and any supplementary reprt and fr attending curt (if required t d s) is t be paid by the parties equally, subject t ther agreement r directin and subject t any later rder cncerning the csts f the prceedings A single expert witness may apply t the curt fr directins. 33 Tendering expert reprts at the hearing 33.1 Subject t s 177 f the Evidence Act 1995, any party may: Tender an single expert s reprt, a cpy f any questins put t the single expert and the single expert's answers Crss-examine the single expert n the reprt A party wh serves an expert s reprt des nt have t tender it at the hearing If a party wh is served with an expert s reprt wishes t preserve the ptin f tendering the expert s reprt in their case, the party shuld cnsider: "Back serving" the reprt n the party wh cmmissined the reprt Whether it is necessary t take steps t have that expert witness available fr crssexaminatin at the hearing. PART F - COSTS 34 Csts at the end f a trial 34.1 The legal representatives must be prepared t deal with a csts argument at the end f a trial including any applicatin fr an award f csts n an indemnity basis The curt may fix the amunt f csts r rder that the quantum f csts be as agreed r assessed T assist the curt t fix the csts, the legal representatives shuld have available: A summary f the fair and reasnable csts that will be sught if their client is successful Evidence f time spent (e.g. cpies f time ledger print uts, file ntes and memranda) The curt will nt engage in a taxing exercise (i.e. allwing r disallwing individual items n a bill f csts) when fixing an amunt f csts. Instead, it will cnsider whether the time spent n the case was reasnable in all the circumstances If parties agree n the quantum f csts after the hearing, they can file cnsent rders withut the need fr a further attendance at curt LCR Part 2 limits the csts that can be awarded at the end f a trial in the Small Claims Divisin. 35 Guideline Amunts 35.1 Schedule 2 f the Legal Prfessin Regulatin 2005 sets the csts that can be awarded fr the recvery f certain debts and the enfrcement f certain judgments The Lcal Curt and the Law Sciety f NSW have previusly develped guidelines fr calculating the amunt f csts that can be awarded in relatively shrt and straightfrward matters. 11

13 35.3 The amunt f csts that will be awarded in relatively shrt and straightfrward matters will be calculated as fllws: Preparatin f dcuments where Schedule 2 f the Legal Prfessin Regulatin 2005 des nt apply (e.g. defences, subpenas) drawing, typing checking, filing and service - $29.00 (per 6 minutes) Perusals, letters, telephne calls etc - $29.00 (per 6 minutes) Cnferences (client and witnesses) - $29.00 (per 6 minutes) Attending interlcutry hearings, preparatin fr trial (including preparing affidavits), attending curt (including traveling and waiting time) - $70.00 (per ¼ hur r part theref) Disbursements as reasnably incurred Cunsel s fees as reasnably incurred 35.4 Where a clerk r paralegal carries ut the attendances, csts fr that persn shuld be allwed at 40% f the amunt fr a legal practitiner Csts will be increased t reflect future increases in the Cnsumer Price Index This practice nte des nt affect the curt s pwer award csts n a different basis frm the guideline amunts r t make rders fr csts n the indemnity basis in apprpriate cases. PART G MAXIMUM COSTS ORDERS IN THE GENERAL DIVISION 36.1 This sectin applies t all prceedings (regardless f when the prceedings cmmenced) where the amunt f the claim is $20,000 r less and includes prceedings that are transferred frm the Small Claims Divisin t the General Divisin Unless the curt therwise rders, the fllwing rders are taken t have been made when the defence is filed in the prceedings: If the plaintiff is successful and the claim is fr an amunt between $10,000 and $20,000, then the maximum csts that can be awarded t the plaintiff is 25% f the amunt awarded by the curt plus any amunt that might be allwed in relatin t csts incurred up t the filing f the first defence in the prceedings. If the defendant is successful and the claim is fr an amunt between $10,000 and $20,000, then the maximum csts that can be awarded t the defendant is 25% f the amunt claimed by the plaintiff Where the prceedings were transferred frm the Small Claims Divisin t the General Divisin, then the maximum csts that can be awarded t the successful party is $2, A party may file and serve a ntice f mtin and supprting affidavit seeking t vary the maximum csts rder at any time up until tw weeks prir t the first review date The ntice f mtin must specify the amunt sught as an alternative maximum csts rder The supprting affidavit must: Explain why it is apprpriate t vary the maximum csts rder in light f the imprtance f the subject matter f the prceedings and the cmplexity f the prceedings Include an estimate f the csts f the party n an rdinary basis as at the date f the applicatin Include an estimate f the csts n an rdinary basis that will be incurred between the date f the applicatin and the cmpletin f the trial. 12

14 Nt annex any bills f csts Any ther party may file and serve an affidavit in respnse t the ntice f mtin. That affidavit may specify an alternative maximum csts rder If any ther party files and serves an affidavit then the ntice f mtin will be listed befre the curt The curt may cnfirm r vary the amunt f the maximum csts rder r make such ther rder as is apprpriate If a crss-claim has been made in the prceedings then the successful party will be entitled t a csts rder as if the crss-claim had been cmmenced in separate prceedings The maximum csts rder referred t in paragraph 35.2 des nt include the csts f any ntice f mtin, which will be separately determined by the curt at the time f the hearing f the ntice f mtin. PART H PRE-JUDGMENT INTEREST 37.1 Practitiners and litigants shuld expect that where, pursuant t sectin 100(1) and (2) f the CPA, interest in respect f a pre-judgment perid is t be included in a judgment, the curt will have regard t the fllwing rates, being rates agreed upn by the Discunt and Interest Rate Harmnisatin Cmmittee established fllwing a referral by the Cuncil f Chief Justices: (a) In respect f the perid frm 1 January t 30 June in any year the rate that is 4% abve the cash rate last published by the Reserve Bank f Australia befre that perid cmmenced, and (b) In respect f the perid frm 1 July t 31 December in any year the rate that is 4% abve the cash rate last published by the Reserve Bank f Australia befre that perid cmmenced. Judge Graeme Hensn CHIEF MAGISTRATE Amendment histry This practice nte replaces the frmer versin f Practice Nte Civ 1. Practice Nte Civ 1 replaced frmer Practice Nte 1 f 2000, Practice Nte 1 f 2001 (insfar as it applies t civil prceedings), Practice Nte 1 f 2005, Practice Nte 2 f 2005, Practice Nte 2 f 2007, Practice Nte 3 f 2007, Practice Nte 6 f 2007, Practice Nte 1 f 2009 and Practice Nte 3 f

15 Annexure A Lcal Curt f New Suth Wales GENERAL DIVISION STANDARD DIRECTIONS (Pursuant t Practice Nte Civ 1) COURT APPEARANCES DATE TIME CALL OVER DATE (Attendance f behalf f all parties is required if a Ntice f Listing is received) (Review and Trial date will be allcated at call-ver) If the parties fail t cmply with the curt s directins it can be expected that the statement f claim will be dismissed r the defence struck ut and rders will be made that the nn cmplying party pays the csts f the ther party. STANDARD DIRECTIONS (applicable nly t matters t be heard by the curt) 1. The curt will allcate a review date at the call-ver. Each party r their legal representative must attend the review and file a written summary f the case, including a reference t any relevant case law r statute. 2. Each party must prepare sufficient cpies f all f their evidence t enable the curt and every party (including that party) t have a cpy f the evidence. 3. Each party must serve a cpy f all f their evidence n all ther active parties at least 4 weeks befre the review. Unless the curt therwise rders and despite UCPR 35.6, a party must serve cpies f any exhibits t affidavits with their evidence. 4. Parties must nt file their evidence prir t the hearing unless the curt therwise rders. 5. The parties must discuss whether they agree abut any facts and the issues that are in dispute. If the parties agree abut any facts and issues in dispute then the plaintiff must file a statement f agreed facts and issues at least 7 days befre the hearing. If the parties d nt agree abut the facts and issues then each party must file a statement f facts and issues at least 7 days befre the hearing. 5. Where a party des nt serve evidence in accrdance with these r any ther directins made by the curt then the party may nt be rely n that evidence at the hearing unless the nn-cmplying party satisfies the curt that it is the interests f justice t d s. 6. Failure t cmply with the Curt s directins may result in the statement f claim r crss claim being dismissed, r the defence being struck ut, with csts. 7. Where a legal practitiner is acting as agent fr a legal practitiner then he/she must immediately frward a cpy f this directin t his/her principal.

16 Annexure B LOCAL COURT CIVIL LISTING ADVICE (IMPORTANT Where the parties are represented by a barrister r slicitr a cmpleted and signed cpy f this dcument must be given t each party s representative n the review date) Parties: -v- Case Number(s): HEARING DATE: Estimated Time fr Examinatin In Chief: Plaintiff - WITNESSES TOTAL: Defendant - WITNESSES TOTAL: TOTAL ESTIMATED OF LENGTH OF HEARING: IS AN INTERPRETER REQUIRED: * Onus t Party t Organise WHAT LANGUAGE: Audi Visual Link Appearance * Onus n Party t Organise All Interlcutry Mtins Filed and Dispsed f: All Subpenas have been issued and cmplied with: Checked Availability f Witnesses fr hearing date: Estimated Time fr Examinatin in Chief YES/NO (please circle ne) YES/NO State r Cuntry: YES/NO YES/NO YES/NO Estimated Time fr Crss Examinatin: PLAINTIFF'S SOLICITOR/COUNSEL CONTACT NO: SIGNATURE: Ttal Time Witness Required: DEFENDANT'S SOLICITOR/COUNSEL CONTACT NO: SIGNATURE:

17 Annexure C Plaintiff: PRE-TRIAL REVIEW SHEET File Number: Defendant: PLAINTIFF S SUMMARY OF CASE: (This sectin t be cmpleted by r n behalf f plaintiff) Dcumentary evidence intended t be relied upn at hearing: Name f Witnesses: Other Material Has the plaintiff made ffers f settlement, attempted mediatin r therwise attempted t reslve the issues in dispute? Yes/N DEFENDANT S SUMMARY OF CASE: (This sectin t be cmpleted by r n behalf f defendant) Dcumentary evidence intended t be relied upn at hearing: Name f Witnesses: Other Material Issues in dispute: Mtr vehicle claims: Ownership /Liability /Agency /Quantum /Demurrage /Lss f Use (Circle relevant issues) Other claims: Has the defendant made ffers f settlement, attempted mediatin r therwise attempted t reslve the issues in dispute? Yes/N

18 Annexure D SMALL CLAIMS DIVISION CASE MANAGEMENT ORDER COURT DETAILS Curt Divisin Registry Case number TITLE OF PROCEEDINGS First plaintiff Number f plaintiffs First defendant Number f defendants HEARING DETAILS Date: Time: Place: Last Date fr Exchange and Filing f Dcumentary Evidence: Case Management Order: 1. Unless the curt makes an rder permitting ral evidence t be given at the hearing, the prceedings will be determined n the basis f the written witness statements and ther dcumentary material that is filed and served n later than the date referred t abve (being n later than 14 days befre the hearing). 2. The curt may allw any dcuments prduced under subpena issued with the leave f the curt r prduced under a ntice t prduce t be admitted as evidence. 3. If a party fails t file and serve affidavits and ther dcumentary material at least 14 days befre the hearing then the curt may refuse t allw the party t rely n that evidence at the hearing. 4. The hearing will be cnducted with as little frmality as pssible. The rules f evidence d nt apply at the hearing. 5. Each party will have the pprtunity t attend and make cmments and present arguments and prvide final submissins n the evidence. 6. If a party fails t attend the hearing the curt may strike ut the statement f claim r defence. Signature (Date)