Part 4.2 - Case Management Flashcards
47 Judicial powers of case management—overarching
purpose and active case management - in IOJ or PI
(eg, directions to ensure prompt, identifying early stage issues, order, timetables, limiting time)
(1) Can make any orders/give any directions it thinks appropriate including made (a) in interests of administration of justice or (b) in public interest. (2) This can include any reasonable limits, restrictions or conditions in respect of (a) the management and conduct of any aspect of a civil proceeding or (b) the conduct of any party.
(3) Some examples:
(a) Giving directions to ensure proceeding conducted promptly/efficiently
(b) Identifying at an early stage issues involved in civil proceeding, including any issues that have not been resolved in accordance with any mandatory or voluntary pre-litigation processes
(c) Deciding order in which issues in dispute in proceeding are to be resolved, including (i) Deciding promptly which issues need a full investigation and hearing; and (ii) Disposing summarily of other issues. (d) Encouraging the parties (i) To cooperate with each other in CP conduct; (ii) To settle whole or part of the civil proceedings (iii) use ADR
(e) Controlling progress of civil proceeding, including but not limited to:
(i) Fixing timetables; (ii) Dealing with as many aspects of a civil proceeding as it can on the same occasion (iii) Dealing with the civil proceeding w/o parties needing to attend Court (iv) Making use of tech
(f) Limiting the time for the hearing or any other part of a civil proceeding, including limiting (i) witness numbers (ii) time for examination/cross-examination; number of witnesses (iii) issues or matters that may be the subject of examination or cross-examination
(g) Considering whether likely benefits of taking particular step in civil proceeding justify the cost of taking it.
s48 Court’s power to order/direct pre-trial procedures (use of ADR, CMCs timetabling, defining issues with pleadings)
(1) In addition to any other power it may have, the Court may make any order or give any direction it considers appropriate to further the overarching purpose in relation to pre-trial procedures.
(2) For example, can make orders/ give directions with respect to:
● (a) Conduct of proceedings
● (b) Timetables/lines for (i) conduct of hearing or (ii) specified steps which must be completed
● (c) Use of ADR to resolve all or any part of the proceeding
● (d) Attendance of parties and LPs at case management conference with a judicial officer to consider most effective and efficient means of bringing proceeding to trial and conducting proceeding, including giving further directions
● (e) Defining issues by pleadings or otherwise, including requiring parties/LPs to exchange memos/take other steps to clarify Qs
● (f) attendance of parties or LPs before judicial officer forconference for the purposes of:
(i) Satisfying the judicial officer that all reas steps to achieve resolution of the issues in dispute have been taken; or
(ii) Otherwise clarifying real issues in dispute to enable appropriate directions to be given for further conduct of dispute/civil proceeding; or
(iii) Otherwise shortening time taken in preparation for trial and at trial.
• (g) any other matter specified in court rules
49 Court’s power to order and direct trial procedures
and conduct of hearing (eg order of evidence/addresses, order re witnesses, limiting oral and written subs length)
(1) In addition to any other power it may have, Court may make any order/give any direction considers appropriate to further overarching purpose re: conduct of hearing. (2) Direction/order may be given/ made at any time (a) before the hearing commences or (b) during hearing.
(3) For example:
● (a) Order in which evidence is to be given and addresses made
● (b) Order in which questions of fact are to be tried
● (c) Limiting the time to be taken by a trial, including the time a party may take to present its case
● (d) Witnesses, including —
○ (i) Limiting time for EIC, CE and RE
○ (ii) Not allowing CE of a particular witness
○ (ii) Limiting the number of witnesses that a party may call
● (e) Limiting issues/matters that may be the subject of X-exam
● (f) Limiting the length or duration of oral and written subs
● (g) Limiting number of documents to be prepared or that a party may tender in evidence
● (h)The preparation by the parties of an agreed bundle of documents for use in proceeding or schedule summarising business records or other documents
● (i) The place, mode and time of trial
● (j) evidence, including but not limited to whether evidence in chief should be given orally, by affidavit or by witness statement
● (k) Costs, including the proportions in which the parties are to bear any costs
● (l) Any other matters specified in the rules of Court
50 Statement of issues (identifies/summarises key issues in dispute in proceeding - court can order)
50A Use of statement of issues (Court may use in any way considered appropriate to further OP - eg for discovery, they’re not pleadings)
(1) court may order/direct that parties consult and prepare statement of issues which identifies/summarises key issues in dispute in proceeding
(2) The Court may settle the contents of the statement if the parties are unable to agree on the contents of the statement
50A(1) Court may use in any way considered appropriate to further OP in relation to (a) pre-trial procedures or (b) conduct of proceeding.
(2) For eg, may be used for the purpose of discovery of documents
(3) statement doesn’t displace function of any pleadings in proceeding
Contravention of orders or directions under this Part s51 (eg, dismiss CP, strike out claim/defence/document; disallow evidence; make costs order - or anything else)
Court may do any one or more of the following:
● (a) Dismiss CP, whether (i) generally (ii) in relation to particular cause of action (iii) in relation to whole or part of particular claim
● (b) Strike out or limit any claim made by a plaintiff
● (c) Strike out or limit any defence and give judgment accordingly
● (d) Strike out/amend any doc. filed by person in whole/in part
● (e) Disallow or reject any evidence that person has adduced or seeks to adduce
● (f) Direct the person to pay the whole or part of the costs of another party or person
● (g) Make any other order/ direction that court thinks appropriate
52 Court may revoke or vary direction or order
52 Court may revoke or vary direction or order
53 Interaction with other powers of court (doesn’t limit them)
53 Interaction with other powers of court (doesn’t limit them)
