Gazetted: 4 September 2009, New South Wales Government Gazette No. 122
The Practice Note is intended to facilitate the just, quick and cheap resolution of proceedings before the District Court. It applies to all matters in the General List in the Sydney, Gosford and Newcastle Registries. The Practice Note commenced on 7 September 2009.
The Practice Note is available electronically at:http://www.lawlink.nsw.gov.au/lawlink/district_court/ll_districtcourt.nsf/pages/dc_practice_notes
The Practice Note is relevant to all claims staff who have litigated claims in their portfolio of claims.
The Practice Note specifically deals with aspects of claims under the Motor Accidents Compensation Act. In particular, your attention is drawn to the following:
|Paragraph 2.2 -||The plaintiff should obtain evidence that the relevant impairment threshold for damages for non-economic loss has been reached before commencing proceedings. That is not to say that there need be an application to the Medical Assessment Service prior to the commencement of proceedings but the plaintiff must serve medical evidence to support that their injuries give rise to a greater than 10% whole person impairment.|
|Paragraph 2.24 -||The defendant is compelled to start preparing for trial based on the matters alleged in the statement of claim and Rule 15.12 or 15.13 particulars on receipt of the statement of claim and particulars. Your solicitors are to arrange medical examinations on receipt of these documents.|
|Paragraph 2.5 -||Before commencing proceedings or filing a defence, legal practitioners must give their clients notice in writing about the requirements of this Practice Note and of the court's insistence on compliance with its orders. That notice must state that the court may dismiss actions or cross-claims or strike out defences if orders are not complied with and that the court may make cost orders against parties who fail to comply with its orders.|
|Paragraph 3.1 -||The plaintiff must serve proposed consent orders for the preparation of the case on the defendant with the statement of claim. This rarely happens presently. The intention is that the plaintiff must include in the consent orders all steps necessary to ensure that the case will be ready to be referred to mediation and/or arbitration or listed for trial at the status conference. Presently, it is rare for both parties to be ready to take a hearing date at the status conference.|
|Paragraph 3.4 -||The court expects that the plaintiff will have served complete Rule 15.12 or 15.13 particulars and primary medical reports and have qualified the experts who will prepare reports, including any liability or economic loss expert when serving the statement of claim. Further, the court expects the defendant will have arranged medical examinations and issued subpoenas when entering into any consent orders for the preparation of the case and prior to the pre-trial conference.|
|Paragraph 5.8 -||The defendant should tell the plaintiff whether or not it agrees that the relevant threshold for damages for non-economic loss has been reached at or before the pre-trial conference. The proposed orders to be handed up at the pre-trial conference must provide any referral to the Medical Assessment Service if the matter has not yet been referred.|
|Paragraph 8.1 -||All cases, except for those which for good reason cannot be heard within 12 months of commencement, will be required to take a hearing date within a period between eight and eleven months from commencement.|
|Paragraph 8.3 -||Matters allocated a hearing date will generally be referred to mediation unless the parties can satisfy the court that mediation is not appropriate. It is anticipated that it will only be on rare occasions when a party can satisfy the court in this regard.|
|Paragraph 8.6 -||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. This is a more onerous obligation placed on the parties for completion of service of evidence than what is currently contained in Rule 31.28 of the Uniform Civil Procedure Rules.|
|Paragraph 10.2 -||If a case has not been the subject of
alternative dispute resolution (eg, mediation), the court may order
that the parties arrange and hold a settlement conference before
the hearing date. The parties and their legal representatives must
attend the settlement conference. In the case of an insured party,
an officer with authority to resolve the case must attend.
It is anticipated that there may be a cost saving to parties in mediation fees where the parties consent to a court ordered settlement conference under paragraph 10.2 of the Practice Note.
NB At any court ordered settlement conference involving an insured party an officer of the insurer must be in attendance with authority to resolve the claim.
The Practice Note adopts the objects of the Civil Procedure Act for the just, quick and cheap resolution of the real issues in court proceedings. The court requires strict compliance with the Practice Note. To this extent, it is incumbent upon both insurers and their legal representatives to take early steps in the preparation of litigated matters for hearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.