FEATURE ARTICLE -
Issue 97: September 2024, Regional Bar
Adventures South of the Border
BY
Peter Woods - Clashfern Chambers
540 Views
Monday 9th September, 2024
Adventures South of the Border
Byron Bay Court House
Introduction
Section 117 of the Australian Constitution protects individuals from discrimination based on their State of residence. In the landmark case of Street v Queensland Bar Association (1989) 168 CLR 461, the High Court expanded the interpretation of this provision.
For ‘Sandy’ Whistler Street[1] it was a significant win. He could now appear in Queensland without surrender of residency. Philip Street was filled with excitement. The “Wild Dog Barrier Fence” was no more.
With the path open, just as NSW barristers began to travel north, Queensland barristers made the journey south. Names to mention included Phil Theobold, who travelled regularly to Lismore. John Griffin QC was even seen appearing in the District Court at Murwillumbah.
Since then, much has changed. The Supreme Court once sat annually and presided over many cases of prominence.[2] Application for special fixture is now required.[3] Byron Bay, once the place to appear when the Chief Judge of the District Court, the Hon. Justice Reg Blanch A.M. was in town, is now overrun by hipsters and influencers.
Aim of this paper
The aim of this paper is to provide guidance to members of the Queensland Bar who are briefed to appear in either the District Court or the Supreme Court of NSW in personal injury proceedings.
Explanatory table
Before commenting on procedure, the following table sets out the main differences between Queensland and New South Wales regarding personal injury litigation.
Jurisdiction according to the nature of proceedings
The monetary jurisdiction of the NSW District Court for claims involving the general law, including common law actions, intentional torts and commercial disputes is $1,250,000.[29]
The jurisdiction of the District Court to hear and determine motor accident cases and workplace injury damages is unlimited.[30]
Motor Accident Claims
Motor accident cases require a certificate of exemption from the Personal Injury Commission (PIC)[31] that is required to be pleaded in the Statement of Claim. The only damages that may be awarded are for non-economic loss[32] and economic loss.[33]
Damages for non-economic loss can only be awarded if the degree of permanent impairment of the injured person is greater than 10%.[34] Whilst common law principles apply in regard to assessment of non-economic loss, the maximum amount of damages that may be awarded is $620,000.[35] Restrictions apply in relation to awards for economic loss.[36]
Work Injury Damages
A claim for work injury damages requires satisfaction of a 15% permanent impairment threshold.[37] The only damages that may be awarded are for past and future economic loss.[38] Before commencement of proceedings, a pre-filing statement setting out the particulars of the claim, and the evidence proposed to be relied on at hearing is required to be served on the insurer.[39] In most cases, the claim must also be referred to mediation before the Personal Injury Commission.
The Civil Liability Act 2002 (NSW): personal injury damages
The Civil Liability Act 2002 (NSW) provides restrictions on care[40] and economic loss.[41] No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case (AMEC).[42] As a result of indexation, the maximum amount awarded for non-economic loss is now $705,000.[43]
Whilst this paper is focussed on personal injury damages, it is noted that the District Court also has jurisdiction to determine any action arising out of a commercial transaction in which the amount (if any) claimed does not exceed the court’s jurisdictional limit.[44]
Country Sittings: Lismore
The District Court at Lismore (civil) sits regularly throughout the year.[45] Interlocutory matters (dealt with by way of Notice of Motion or Summons) can be listed before the Resident Judge,[46] who mainly sits in crime, in special circumstances.
Cases are listed in the following order of priority: child care appeals; cases that have not been reached at a previous sittings; any cases with priority; all other cases.[47]
Practice Note DC (Civil) No. 1A
Case management in Country Sittings is governed by Practice Note 1A.[48] The Practice Note is “intended to facilitate the just, quick and cheap resolution of the real issues in all proceedings before the Court”[49]and applies to all matters heard in country sittings.[50]
The Court ambitiously aims to have cases completed within 12 months of commencement.[51] Parties should be expected to be allocated a trial date within 12 months of commencement of proceedings.[52] In support of the Private Bar, “Counsel’s advice should be obtained early. Proceedings will not be delayed by reason of a party’s failure to brief counsel at an early stage”.[53]
If a matter, for good reason, cannot be heard within 12 months of commencement, the parties are “required to take a hearing date within a period between 8 and 11 months from commencement”.[54]
Relevantly, unless orders are made at the status conference, the “Court will usually not allow parties to rely on medical reports and experts’ reports served later than 28 days before the status conference”.[55]
Reports not served in accordance with Court’s orders are usually inadmissible”.[56] If no such order is made, expert reports and hospital records are required to be served no later than 28 days before the date of hearing.[57]
Alternative Dispute Resolution
The Court will refer appropriate matters for alternative dispute resolution (ADR). It is of note that the “Court’s power to order mediation does not depend on the consent of the parties”.[58]
Conduct of Hearings
The Practice Note at paragraph 14 deals with Conduct of Hearings. Specific reference is made to the Legal Profession Uniform Conduct (Barristers) Rules 2015.[59]
All legal practitioners are required when conducting a hearing to limit cross-examination to that which is reasonably necessary to “advance and protect the client’s interests which are at stake in the case” and to “occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests which are at stake in the case”.[60]
Settled Matters
When a case is settled the Registry is required to be promptly advised. [61] Terms of settlement, consent orders or a notice of discontinuance are usually filed.[62]
PN 1A – Schedule 1 – Standard Orders for Hearings in Country Matters
The said schedule, that forms part of Practice Note 1A, provides standard orders for hearings in country matters:
the plaintiff is to prepare and serve a chronology (read by the plaintiff or having the same read to them) at least 3 clear days before trial;[63]
the chronology is to be tendered as part of the plaintiff’s case;[64]
each party is to prepare a schedule of medical and expert reports and any other documents to be tendered (with the schedule required to be served at least 3 days prior to hearing);[65]
expert evidence, where appropriate, is to be given concurrently;[66]
each expert is to be provided with the reports of the other experts at least 21 days before commencement of the hearing;[67]
the experts, before giving their oral evidence, are to confer with the intent of reducing the issues between them and prepare a joint report stating the areas of agreement and continued disagreement, including the reasons for such disagreement;[68]
each party is to prepare a schedule of damages and a schedule of issues to be served on each other party at least 3 days prior to hearing;[69]
any application for adjournment is required to be made by way of Notice of Motion with supporting affidavit material;[70] and
if the relevant circuit court judge is not sitting, any application for adjournment is to be made to the list judge in Sydney.[71]
Case management in the General List in Sydney, Gosford and Newcastle differs slightly to Country Sittings. The Practice Note requires careful study. Some differences include:
all cases in the managed list, except defamation claims and child care appeals, are allocated a pre-trial conference date when the statement of claim is filed;[73]
the plaintiff is required to notify the defendant of the date and time of the pre-trial conference when the statement of claim is served;[74]
the pre-trial conference will be held two months after commencement of proceedings;[75]
no case may be entered into the Commercial, Intentional Torts or Professional Negligence lists before the pre-trial conference;[76]
cases will generally not be put into any of the said lists unless they are of a significant value and/or complexity so as to require detailed management;[77]
the majority of cases will be managed in the General List (which include cases that concern a claim for less than $300,000);[78]
strict compliance with orders of the Court is required;[79] and
failure to comply with such orders “will be treated seriously and may lead to adverse costs orders against the non-compliant party or where appropriate, a legal practitioner”.[80]
The Supreme Court of NSW – Sydney
Personal injury proceedings are ordinarily commenced in the Common Law Division of the Supreme Court (Common Law General List). Proceedings in this Division are to be commenced by Summons or Statement of Claim.[81] The lists in the Common Law Division include the Professional Negligence List.[82]
Practice Note SC CL 1
Case management generally is set out at paragraphs 12 and 13 of the Practice Note.
The Court will allocate a directions hearing when the Summons or Statement of Claim or defence (as appropriate) is filed.[83] All matters will be initially allocated to the Registrar for case management except for those matters identified at paragraph 13 (which include all proceedings filed in the Professional Negligence List).
In contrast to Queensland, where leave is required to progress a claim if no step is taken for a period of 2 years,[84] in the Supreme Court of NSW the Court is permitted to make an order dismissing the proceedings of its own motion if it appears from the Court’s records that for a period of over five months no party has taken any step in the proceedings.[85]
Evidentiary Statement
In claims in tort, contract and debt, at the first directions hearing a plaintiff is to provide to each party an evidentiary statement.
If a party intends to raise other issues not covered by the statement, an amended statement is to be served on each party as soon as practicable.[86]
Each defendant is to serve on the plaintiff within 28 days of receipt of the evidentiary statement a statement of issues in dispute.[87]
A plaintiff is to serve on each party within 14 days of receipt of the statement of issues, a statement identifying those matters and the facts set out by the defendant which are agreed or not.[88]
Paragraphs 42 and 43 of the Practice Note relevantly provide that: “[t]he Judge or Registrar will order:
the plaintiff to serve any further witness statements or affidavits to be relied on at the hearing including any statements additional to those served under paragraph 40;
the defendant to serve any witness statements or affidavits to be relied upon at the hearing;
the plaintiff to serve any witness statements or affidavits in reply; and
the parties to serve copies of any documents to be relied upon.”
A witness may only give oral evidence at trial with leave.[89]
It is useful to note the those parts of the Practice Note that relate to expert witnesses;[90] concurrent expert evidence;[91] single expert witness;[92] mediation;[93] allocation of hearing dates;[94] vacating hearing dates;[95] and applications by motions.[96]
Procuring the attendance of experts and the issue of subpoenas
As touched on in the opening part of this paper, rule 22 of the UCPR (NSW) relevantly provides that:
“A party who requires the attendance of a person under subclause (5) shall procure that attendance, and, whether the party procures the attendance by the issue and service of a subpoena or otherwise, the person shall not thereby become the party’s witness except for the purpose of determining any liability for conduct money or witness’ expenses.”
This rule only applies to proceedings before the District Court.
The position of the Supreme Court is different. If a medical expert is required for cross examination, they are to be subpoenaed: UCPR (NSW), r.31.32.
Rule 31.32(3) provides that “[i]f a subpoena requires a medical expert to attend court on a specified date for the purpose of giving evidence on medical matters, it must be served on the expert not later than 21 days before the date so specified unless the court orders otherwise”.
The hearing of Queensland matters in NSW
In conclusion it is appropriate to mention that if proceedings are commenced in NSW for personal injury damages arising from a tort committed in Queensland, the substantive law to be applied is the law of Queensland.[97]
Whilst this applies to damages, there is no obligation on the part of the claimant to comply with the Queensland pre-court procedural requirements, despite the same being described as substantive in nature.[98]
Conclusion
What is set out above is by no means an exhaustive list of matters to consider when conducting a case south of the border. Other areas such as infant approvals, appointment of Fund Administrators (Supreme Court) and medical negligence can perhaps be further considered separately.
[1] Who took Silk and was also a Federal Court Judge (noting that his father, Sir Laurence Whistler Street, his grandfather, Sir Kenneth Whistler Street, and his great-grandfather, Sir Philip Whistler Street – each served as Chief Justice of New South Wales).
[2] See Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469, which originated in the Supreme Court at Lismore.
[3] PN SC CL 1, para 9 “Where a party proposes that a case or number of cases should be heard at a venue outside Sydney, this should be raised with the Registrar or Judge managing the case. The party should provide information to the Court as to the availability of the courthouse in the area where it is proposed to have the sitting”.
[16] UCPR (Qld), r. 547(1); in the form of Statement of Loss and Damage (not filed) (served within 28 days after the close of pleadings.
[17]Uniform Civil Procedure Rules 2005 (NSW), r.15.12; in the form of Statement of Particulars. (required to be filed as soon as practicable after serving the statement of claim; also note that r.15.14(4) provides that “[u]nless the court orders otherwise, the plaintiff must file a copy of the final statement of particulars at least 42 days prior to the date fixed for hearing or arbitration of the proceedings”.
[27] UCPR (NSW), r.31.28 (3) “Except by leave of the court, or by consent of the parties– (a) an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule”.
[29] As at 16 December 2022; District Court Act 1973 (NSW), s.4(1). For proceedings filed in the Court before this date the limit is $750,000.
[30] Civil Trials Bench Book “Monetary jurisdiction in the District Court” [5-2000] “Jurisdiction according to the nature of proceedings”.
[31]Motor Accidents Injuries Act 2017 (NSW), s.7.34(1)(a) provides that a claim is exempt from assessment if it is of a kind specified in the regulations as exempt. Clause 14 of the 2017 Regulation sets out a number of circumstances in which a claim must be exempted from assessment by the Commission.
[32] Being another description of general damages.
[34] Ibid, s. 4.11; see also State Insurance Regulatory Authority, “Motor Accident Guidelines”, Part 6.2 (based on the AMA guides to the evaluation of permanent impairment, fourth edition).
[35]Motor Accident Injuries Act 2017 (NSW), s.4.13; as at 1 October 2023; Motor Accidents (Determination of Non-Economic Loss) Order 2023.
[36] See for example s.4.6 (2) viz., “In the case of such an award, the amount (if any) by which the injured or deceased person’s net weekly earnings would (but for the injury or death) have exceeded the maximum weekly statutory benefits amount under Division 3.3 is to be disregarded (even though that maximum weekly statutory benefits amount is a maximum gross earnings amount).”
[37]Workers Compensation Act 1987 (NSW), s.151H(1); section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the Workers Compensation Guidelines.
