Civil Trials Bench Book — Procedure generally

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].

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.

The intent of the UCPR and the court’s practices is to ensure that parties are given a fair opportunity to advance their cases, while ensuring that litigation is not conducted by ambush or surprise: Worthington bht Worthington v Hallissy [2022] NSWSC 753 at [16].

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); see Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342 at [20].

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]). Non-compliance with the requirements as to service in r 2.7 of the Supreme Court (Corporations) Rules 1999 was held to be an irregularity within the meaning of s 63 of the Civil Procedure Act entitling the recipient to apply under s 63(3) for orders setting aside service, but did not of itself invalidate the proceedings or the service. Non-compliance with the rules of court may in certain situations serve the overriding purpose in s 56 of the Civil Procedure Act and need not be accompanied by any impropriety as “the rules are to be the servant of justice, not its master”. There was no error in the primary judge’s finding that it was appropriate to delay service for the applicant to secure a litigation funding agreement: Choy v Tiaro Coal Ltd (2018) 98 NSWLR 493 at [36]–[37].

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.

As to the overriding purpose see the discussion by Einstein J in Idoport, above, at [17]–[18]; Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 at [90]. 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:

However, in Aon Risk Services Australia v Australian National University, the court held that “to the extent that statements about the exercise of the discretion to amend pleadings in that case suggest that case management considerations and questions of proper use of court resources are to be discounted or given little weight, it should not be regarded as authoritative”: 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”.

In Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2022] NSWCA 275 at [3]–[4], a failure to identify and focus on the real issues in the proceedings, as s 56 of the CPA requires, led to the tender of a large volume of manifestly irrelevant material, lengthy submissions addressing it and lengthy discussion in the judgment. At each stage this failure should have been identified and the process adjusted, with beneficial consequences for the costs to the parties and the demands on the limited resources of the court.

Resolving the issues between the parties must also be done in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute as provided for by s 60 CPA. This is in accordance with policy considerations that the entitlement of the parties to justice is not unconditional, but is dependent upon the resources of the court made available by the government and the appropriate allocation of resources by the parties, which may depend upon their individual assessments of the importance of the issues in dispute: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [37]. In Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342, leave to appeal was refused as the general criteria for leave to appeal were not met and the size of the claim was found to be wholly disproportionate to the costs of the proceedings: at [15]–[20], [32].

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.

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.