Case management

[2-0000] Court’s power and duty of case management

The court has an inherent or incidental power to act effectively to regulate its own proceedings: John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh J. It also has a statutory power and duty of case management. This section deals generally with that power and duty. Particular applications are to be found in the sections on “Adjournment” at [2-0200], “Amendment” at [2-0700], “Dismissal for lack of progress” at [2-2400], and “Stay of pending proceedings” at [2-2600].

[2-0010] Overview

Section 56 of the CPA requires that the court manage disputes and proceedings in conformity with the overriding purpose set out in that section and in accordance with the objects enumerated in s 57 (the objects).

The overriding purpose of the CPA and the UCPR in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

The objects include efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings and all other proceedings in the court at a cost affordable by the respective parties.

The court must seek to give effect to the overriding purpose in exercising its powers under the Act or rules: s 56(2). Construction of the Act and rules must seek to give effect to the overriding purpose (s 56(2)) and they must be construed and applied as best to ensure the attainment of the objects: s 57(2).

The formulation of techniques and procedures that will enhance speed, or efficiency, or fairness in the resolution of civil disputes is within the power of the court. Novelty is no bar to such power or duty, however, the trammelling of fundamental common law or statutory rights is such a bar: State of NSW v Public Transport Ticketing Corporation (No 3) (2011) 81 NSWLR 394.

In deciding whether to make an order or direction for the management of proceedings, the court must seek to act in accordance with the dictates of justice. In so deciding, the court must have regard to the provisions of ss 56 and 57, and may have regard to a number of other factors set out in s 58(2) including “such other matters as the court considers relevant in the circumstances of the case” (s 58(2)(b)(vii)); see Hans Pet Construction v Cassar [2009] NSWCA 230.

Emphasis is laid on the elimination of delay (s 59) and the proportionality of costs to the importance and complexity of the subject matter in dispute: s 60.

The court may give directions as to practice and procedure generally and may make a range of orders including dismissing proceedings where there has been a failure to comply with a direction: s 61.

The court may give directions as to the conduct of the hearing including as to limitations of time (s 62), however, the directions must not detract from the principle that each party is entitled to a fair hearing: s 62.

The court may give directions with respect to procedural irregularities: s 63. That section provides that a failure to comply with any requirement of the Act or of the rules, whether in respect of time, place, manner, form or content or in any other respect shall be treated as an irregularity. There is thus no longer any valid distinction to be made between mere irregularities on the one hand and, on the other, matters which would have been regarded as nullities under the old authorities (see Ritchie’s [s 63.5]).

The court may dispense with any requirement of the rules if satisfied that it is appropriate to do so: s 14. It may give directions in respect of any aspect of practice or procedure for which rules or practice notes do not provide: s 16. Section 15 provides for the issue of practice notes.

Section 86 permits the court to impose such terms as it may think fit on the making of any order or direction.

Part 2 of the UCPR supplements the provisions as to case management in the CPA discussed above. Rule 2.1 gives a wide general power to give such directions and orders “as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of proceedings”. For an example of the use of r 2.1 to limit medical examinations, see Tvedsborg v Vega [2009] NSWCA 57 at [39]–[43]. For an example of the use of r 2.1 (and other provisions of the CPA and UCPR) to preserve pre-trial confidentiality in respect of investigations and discussion of relevant principles, see Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265.

Rule 2.3, without limiting the generality of r 2.1, enumerates a number of specific matters to which directions and orders may relate.

Rule 2.3(h) and (l) provides that the court may give directions relating to the use of technology, see Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51.

The courts have issued practice notes as listed below in respect of case management including those in respect of specialist lists.

[2-0020] General principles

As to the overriding purpose see the discussion by Einstein J in Idoport, above, at 14–19. For a discussion on the requirement that all relevant statutory provisions be taken into account, see Hans Pet Construction v Cassar, above.

Procedural directions must be directed towards the attainment of the overriding purpose. It follows that rigid compliance with orders and directions should not be insisted upon if the effect is to compromise attainment of the overriding purpose.

The court must take into account the efficient disposal of the business of the court and the efficient use of judicial resources: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 421 per Kirby P and 430 per Samuels JA.

In State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154 Dawson, Gaudron and McHugh JJ said:

Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.

And see Kirby J at 171–172, 174.

However in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Spigelman CJ, with whom Basten and Campbell JJA agreed, observed that, while State of Queensland v J L Holdings Pty Ltd remained binding authority with respect to applicable common law principles, those principles could be and had been modified by statute both directly and via statutory authority for rules of court: [28].

The Chief Justice said at [29]:

In this State J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in mandatory terms — “must seek” — to give effect to the overriding purpose — to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” — when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act.

The duty referred to applies to the exercise of the power of adjournment.

Subsequent to Dennis the High Court held that the statement from J L Holdings set out above is not authoritative and is not to be followed: Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 French CJ at [6]; Gummow, Hayne, Crennan, Kiefel and Bell JJ at [111]; Heydon J at [133].

In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 the High Court, in a single judgment, made a very strong statement as to the breadth of powers of case management conferred on the courts by the CPA, the requirement that the courts exercise such powers and the duty of parties and their representatives to positively assist the courts in doing so and to avoid technical disputes about non-essential issues. Paragraphs [51]–[57] deal specifically with “the approach required by the CPA”.

See also Richards v Cornford (No 3) [2010] NSWCA 134; Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 at [52]–[76] and Kelly v Westpac Banking Corporation [2014] NSWCA 348.

[2-0030] Dismissal of proceedings or striking out of defence

The emphasis upon the avoidance of delay is complemented by the provisions of r 12.7 of the UCPR which provide for the dismissal of proceedings or striking out of a defence for lack of progress. See “Dismissal for lack of progress” at [2-2400] below.

[2-0040] Sample order

Legislation

  • CPA ss 14, 16, 56–63, 64, 86

Rules

  • UCPR rr 2.1, 2.3, 12.7

Practice Notes

  • Supreme Court

    • Common Law Division

      • General SC CL 1

      • Administrative Law List SC CL 3

      • Defamation List SC CL 4

      • General Case Management List SC CL 5

      • Possession List SC CL 6

      • Professional Negligence List SC CL 7

    • Equity Division

      • Case Management SC Eq 1

      • Admiralty List SC Eq 2

      • Commercial List and Technology and Construction List SC Eq 3

      • Corporations List SC Eq 4

  • District Court

      • Case management in the general list DC (Civil) No 1

      • Case management in the commercial list DC (Civil) No 2

      • Case management in the construction list DC (Civil) No 3

      • Proceedings under the Property (Relationships) Act 1984 and Family Provisions Act 1982 DC (Civil) No 4

      • Defamation DC (Civil) No 6

      • Summons and motion DC (Civil) No 9

  • Local Court

      • Case Management of Civil Proceedings in the Local Court Practice Note Civ 1 of 2011

      • Case Management of Proceedings in the Small Claim Division of the Local Court Practice Note 2 of 2005