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The District Court Rules govern the process of bringing civil
proceedings in the District Court for amounts of up to $200,000. As
from 1 November 2009, that process will radically change.
The focus of the new District Court Rules (Rules) is to
encourage the just, economical and inexpensive determination of
claims.
Summary of major changes
The plaintiff will not file a Statement of Claim and the
defendant will not file a Statement of Defence.
There will be no discovery of documents - the current process
whereby each party swears an affidavit listing all the documents in
its possession that are relevant to the proceedings will no longer
be available.
Each party must serve an 'information capsule' on the
other party before the proceeding is allocated a hearing.
Most proceedings will be allocated to either a judicial
settlement conference or a short trial - full trials that are the
norm now will largely be the exception.
Pre-trial procedures will be strictly limited.
New time limits will apply.
Commencing a proceeding
Notice of Claim
A plaintiff commences proceedings by filing and serving a Notice
of Claim. This is a generic form and will be available on-line. The
plaintiff must sign a statement in the Notice of Claim verifying
the claim against the defendant.
Response
The defendant has 30 working days to serve a Response. This is
not filed in the Court. If the defendant fails to serve a Response,
the plaintiff may seek judgment by default.
Information Capsules
Once the Response is served, the plaintiff has 30 working days
to serve the plaintiff's information capsule.The information
capsule includes a summary of what your witnesses will say in
support of your case and a list of the essential documents in your
possession that you intend to rely on. The information capsule is
not filed. After service of the plaintiff's information
capsule, the defendant has 30 working days to respond by serving
the defendant's information capsule meeting the same
criteria.
Allocation of the proceeding
The allocation process begins by the plaintiff filing a Notice
of Pursuit.
The Court will allocate a proceeding to:
The Disputes Tribunal (if less than $15,000).
A short trial - suitable for claims that can proceed to a
hearing quickly, that involve relatively uncomplicated issues or
modest amounts, or are unlikely to exceed a single day's
hearing time.
A judicial settlement conference. If the parties do not settle
at the judicial settlement conference, the Court will allocate
either a:
Simplified trial - suitable for cases with one or two issues.
Evidence is to be given by affidavit with strict time limits for
cross-examination.
Full trial - available for complicated cases or cases with
precedent value.
Implications for your business
Faster resolution of proceedings - the new shorter time limits
encourage prompt settlement. Parties that do not abide by the time
frames may have their proceeding discontinued or judgment entered
against them.
More reliance on your own evidence - as the Rules do away with
the discovery of documents process, parties will be more reliant on
their own evidence to negotiate a good settlement or obtain
judgment in their favour.
Less cost - the speedier process required to obtain settlement
or judgment will offset the likely increase in cost at the
beginning of the proceeding preparing the mandatory information
capsule.
A potential increase in lay litigants - the court forms and
processes are more self-explanatory and are intended to create
easier access to justice for self-represented litigants.
Judicial settlement conferences will be the norm - they will be
a prerequisite before a claim is allocated to a full trial or
simplified trial. Strict time limits apply to judicial settlement
conferences
Pre-trial applications will be minimal.
Debt collection will change to being substantially default
judgment based. Summary judgment will only be available once a
judicial settlement conference has occurred and failed.
Further information
The Rules come into force on 1 November 2009.
The existing procedures may favour some types of proceedings,
whereas the new procedures may favour others. Businesses
contemplating issuing proceedings now may wish to consider whether
to defer commencing proceedings until the new Rules are in
force.
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
www.dlaphillipsfox.com
This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
particular circumstances.
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The Court held that communications continued to attract legal privilege because the expert formed his own conclusions.
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