District Court Amendment Rules 2007

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Thursday, February 18, 2016

The District Court Amendment Rules 2007 amend the 2005 District Court Rules. The most pertinent of these amendments are the new Parts 4A (Documents to be filed, served or delivered before trial), 5A (Expert evidence) and 5B (Interlocutory applications). The effect of these amendments are detailed below:

Part 4A (Documents to be filed, served or delivered before trial)

This part applies only to a case that is an action commenced by writ: rule 45A.

Rule 45C deals with particulars of damage and it applies to any party to a case who claims damages in the case. Sub-rule (2) states that the party must file and serve particulars of damages within 60 days after the day the defence (or if there is more than one defendant, the first defence) is filed.

While sub-rule (3) applies in cases of personal injuries action, sub-rule 4 applies in a case which is not a personal injuries action. Sub-rule (4) states that if the case is not a personal injuries action, the particulars of damages must set out in detail any amount of money claimed, the justification for claiming it, and how it is calculated.

Rule 45D deals with actions involving claims under buildings and engineering contracts.

Rule 45E makes provision for an index of expert witness reports. Sub-rule (2) states that this rule applies if under rule 40(5)(a) the presiding officer orders the parties to attend a listing conference.

Sub-rule (3) states that a party must file and serve an index of the reports of any expert witness that the party intends to tender as evidence at trial and must do so-

  1. at least 14 days before the day of the listing conference, if the party is the plaintiff; and
  2. at least 7 days before the day of the listing conference, in the case of any other party.

Sub-rule (4) says that at any time before the 21 day period preceding the trial date, a party served with an index (“A”) may serve the party who served the index (“B”) with a notice requiring information as to the qualifications and experience and experience of an expert witness whose report is listed in the index. Sub-rule (5) says that on A serving B with a notice, B must provide the information within 7 days.

Sub-rule (6) states that except with the leave of the Court, a party cannot tender the report of an expert witness as evidence unless the party has complied with this rule in relation to that report.

Rule 45F is titled “Papers for the Judge”. Sub-rule (1) states that at least 42 days before the trial date, the plaintiff must file and serve the papers for the Judge comprising-

  1. the pleadings, and any affidavits ordered to stand as pleadings, with any amendments to them incorporated and the dates of those amendments; and
  2. the particulars of damages filed and served under rule 45C; and
  3. any request or order for particulars that has been made together with the particulars given; and
  4. any order for directions made under the RSC Order 19 rule 4.

Sub-rule (2) states that if the pleadings are amended after the plaintiff has filed and served the papers referred to in sub-rule (1), the plaintiff must file and serve the whole of the pleadings as amended unless the Court orders otherwise.

Rule 45G deals with records and objects intended to be tendered as evidence. Sub-rule (4) is the most important of these sub-rules. It states that a party must file and serve a list of all records and objects that the party intends to tender as evidence at trial and must do so-

  1. at least 42 days before the trial date, if the party is the plaintiff; and
  2. at least 28 days before the trial date, in the case of any other party.

Rule 45H is rather important and is headed “Outline of Submissions”. The sub-rules to this rule read as follows:

(1)A party must file and serve the “Outline of

submissions” —

            (a) 42 days before the trial date, if the party is the

            plaintiff; or

            (b) 28 days before the trial date, in the case of any

            other party.

(2) The Outline of submissions consists of a Form 2 to

which is attached —

            (a) a document titled “Submissions”; and

            (b) a document titled “Legal authorities”; and

            (c) if the party wants the Court to make orders, a

            document titled “List of orders wanted”; and

            (d) if the party chooses, a document titled “Draft

            chronology”.

(3) The document titled “Submissions” —

            (a) must contain the contentions of law or fact the

            party intends to make at the trial, expressed so

            as to convey the substance of them clearly and

            as succinctly as possible; and

            (b) must set out the contentions in numbered

            paragraphs; and

            (c) must refer to each principal legal authority on

            which the party relies in support of the

            contention; and

            (d) must not be more than 10 pages long; and

            (e) must be signed by the person who prepared it.

(4) The document titled “Legal authorities” —

            (a) must list, and number consecutively, each

            principal legal authority to which the court is

            referred, under these headings in this order —

                        (i) “Written laws”;

                        (ii) “Judgments”;

                        (iii) “Legal texts”; and

            (b) must mark with an asterisk any legal authority

            from which it is intended to read any text to the

            court at the hearing; and

            (c) for each written law listed, include its short

            title, its jurisdiction and each relevant rule or

            provision of it; and           

[Example:

Written laws:

*1. Interpretation Act 1984 (WA) s. 5 “under”; s. 61.

2. Acts Interpretation Act 1901 (Cth) s. 22(1).]

            (d) for each judgment listed, include —

                        (i) first, its citation in an authorised law

                        report (if any) and any page of it on

                        which is a relevant passage; and

                        (ii) second, its media neutral citation (if

                        any);

[Example:

Judgments:

*3. Ward v The Queen (2000) 23 WAR 254 at 274; [2000] WASCA 413

at [106].

4. Talbot v Lane (1994) 14 WAR 120.]

            and

            (e) for each authoritative legal text listed, refer to

            the edition concerned and to each relevant

(5) The document titled “List of orders wanted” must set

out the orders that the party wants the Court to make.

(6) The document titled “Draft chronology” must state

succinctly in numbered paragraphs arranged in date

order the date and facts of each event that is material to

the case.

Rule 45I deals with “List of witnesses”. The sub-rules to this rule are as follows:

            (1) At least 7 days before the trial date for a case, a party to

            the case must file and serve a document listing, in the

order in which they will be called, each witness that the

            party intends to call to give evidence and stating —

                        (a) any special circumstances that affect the date or

                        time when the witness can be called; and                       

                        (b) any directions that the Court has made in

                        relation to the taking of evidence from the

                        witness by audio link or video link.

            (2) Except with the leave of the Court, a party cannot call a

            witness at a trial unless the party has complied with

            this rule in relation to that witness.

Rule 48 of the District Court Rules 2005 relating to interrogatories after a pretrial conference is replaced by Parts 5A and 5B below. Please note that there were other minor amendments to other rules but it would be too lengthy and tedious to reproduce them here. 

Part 5A — Expert Evidence

48. Expert witnesses, certification as to compliance with

practice directions

(1) This rule applies to the report of an expert witness that

a party intends to tender as evidence other than the

report of a medical expert prepared for the purposes of

a personal injuries action.

(2) The author of the report must certify in the report that

he or she has read and complied with the practice

direction made by the Court for the purposes of this

(3) Except with the leave of the Court, a report that has not

been certified as required under subrule (2) is not

admissible at trial.

Part 5B — Interlocutory applications

48A. Amending pleadings, RSC Order 21 modified

(1) The RSC Order 21 applies, subject to this rule.

(2) The RSC Order 33 Rule 10 and rule 48C of these rules

do not apply to an interlocutory application to amend

(3) If an application to amend a pleading is filed after a

case is listed for trial, the application must be

accompanied by an affidavit of the party making the

application or the lawyer representing the party.

(4) The affidavit is to set out the facts —

            (a) that have arisen since the certificate was

            tendered under rule 43(3a); and           

            (b) that ground the party’s or the lawyer’s

            argument that the amendment is necessary.

48B. Interlocutory applications after listing for trial

(1) If an application for an interlocutory order is filed after

a case is listed for trial, the application must be

accompanied by an affidavit of the party making the

application or the lawyer representing the party.

(2) The affidavit is to set out the facts that ground the

party’s or the lawyer’s argument that the order is

(3) Unless justice requires otherwise, the Court will not

grant an application referred to in subrule (1) if to do so

would necessitate adjourning the trial.

The content of the provisions of the District Court Amendment Rules 2007 (WA) were adapted from Government Gazette No. 155, 31 July 2007, pg 3807 as it appeared on the State Law Publisher website.

Liability limited by a scheme approved under Professional Standards Legislation.

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