Pursuant to Supreme Court Practice Direction No.4 of 2006 a new list has been created called the Commercial and Managed Cases List “CMC List”. All of the other specialised lists have been abolished. All cases within the existing Expedited List, the Defamation List and the Corporations List will be automatically transferred and admitted to the new List, as will all new cases that would previously have been admitted to the Defamation List and Corporations List.
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Cases presently in the expedited list will not suffer any loss of priority or degree of specialized supervision in the new List. The processes and methods currently utilized in the Expedited List will essentially be applied to all cases in the new List, which will, as far as possible, be docket managed by the Judge or Master likely to hear the trial of the case.
Apart from cases automatically admitted to the list as outlined in the first paragraph above, entry into the List will be by Chamber Summons.
The List is suitable for all commercial cases and any case in which there is a significant prospect of interlocutory dispute, or which, in the opinion of a Judge or Master, is suitable for more intensive case management for any other reason (such as the need for expedition, the complexity of the issues, the likely length of trial, etc). Generally speaking, if one party wants the case admitted to the List for any of these or other good reasons, the case will be admitted.
In addition, any case which has manifested a propensity for interlocutory dispute being listed in Judges’ or Masters’ Chambers, will in general be admitted to the List, unless there is a good reason for not admitting it.
In the first instance, the List will be managed by two Masters and three Judges (Martin CJ, Templeman J, Le Miere J). If workload demands, additional Judges will be added to the List.
The List was implemented with effect from 1 September 2006, using the powers conferred upon Case Managers by Orders 29 and 29A, and the utilization of standard directions, being essentially those now made in the Expedited List (Order 31A rule 4) with another standard direction which applies the pre-1 September 2006 regime relating to the amendment of pleadings in the Expedited List to all cases in the new List.
Pursuant to Practice Direction No. 6 of 2006, the summons seeking admission to the List and all documents filed subsequent to admission to the List shall have the words “COMMERCIAL AND MANAGED CASES LIST” endorsed directly beneath “In the Supreme Court of Western Australia” on the top left corner of the document, and all documents filed subsequent to admission to the List will also bear the name of the allocated Judge or Master below the tram lines.
The general objective of the new List will be to bring cases to the point where they can be resolved by mediation or tried in the quickest, most cost effective way with the need to provide a just outcome. The principle of proportionality will be applied, and in due course the Rules of Courts amended to make proportionality the principle which governs all rules and procedures of the Court. That principle may be generally expressed in terms of requiring the Court to deal with cases, so far as practicable, in ways which are proportionate:
- to the importance of the issues involved;
- to the value of the subject matter involved;
- to the complexity of the issues; and
- to the financial position of each party;
with the overriding obligation of the Court to deal justly with its cases.
The Court will also take into account the need to allot to each case an appropriate share of the Court’s limited resources, while taking into account the need to allot resources to other cases. The parties and their legal advisers will be encouraged to assist the Court to achieve these objectives, and the Rules will be amended to specify that obligation in due course.
Having regard to this objective, parties should carefully consider the ambit of any discovery sought. As appears from the standard directions, parties should give consideration to the provision of discovery in stages, or on particular issues only.
The processes of the new List will closely resemble the processes of the Expedited List, with cases being listed for directions generally at 9.15am. Directions hearings will not be adjourned indefinitely, but re-listed for further directions on a specific date. Early identification of the matters truly in issue will be a key focus of the new List- whether by pleadings or some other process appropriate to a particular case. Formal non- admissions or denials or matters not substantially in issue will be actively discouraged.
Where a party is represented by a solicitor or counsel, it is not necessary for the party also to attend a directions hearing or other interlocutory hearing, unless required to do so by subpoena or other order of the Court (Practice Direction No.6 of 2006).
Mediation by a Mediation Registrar will be a holistic part of the process, and, in general, no case will be listed for trial without the meditation process having first been exhausted.
A fundamental objective of the new List, and indeed the general practices and procedures of the Court, will be the discouragement of interlocutory disputes with all means at the Court’s disposal, including costs orders in appropriate cases. The procedure specified in Order 31A rule 4 will generally be followed, as will the approach set out in the commentary to paragraph 31A.2.6 of Seaman’s Civil Procedure Manual.
Where an interlocutory dispute cannot be avoided, it will wherever possible be determined by the Case Manager after the exchange of written submissions, either on the papers or following a short hearing at which time permitted for oral argument will generally be limited by direction to 20 minutes or perhaps half an hour for each party. The legal representatives of the parties will be actively encouraged to comply with Order 59 rule 9 by meeting face to face or at least conferring by telephone.
Where it appears that the matter is likely to proceed to trial, directions will be made for the early preparation of the trial bundle, so that it will generally be available no later than at the time the matter is entered for trial. All documents subsequently prepared, such as witness statements, expert reports, chronologies, submissions, etc, can incorporate documents in the trial bundle by reference.
Innovative approaches to expert evidence will be encouraged, including the parties conferring with a view to agreeing some or all of the facts upon which the expert opinions are to be based and the questions to be addressed to the experts. Conferral of experts prior to trial will normally be ordered. The taking of expert evidence concurrently at trial will be considered.
The operation of the List will be kept under constant review, and changes made to its procedures as often as necessary to ensure that the cases within it are brought to a just resolution as quickly and as efficiently as possible. The same general principles will guide the Registrars in the management of cases outside the List.
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