ByLawyers News and Updates

Supreme Court – QLD

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From 1 May 2023 Practice Direction 9 of 2023 Caseflow Management – Civil Jurisdiction governs caseflow management in civil proceedings in the Supreme Court.

The new Practice Direction is to be read with Practice Direction 11 of 2023 Consent Orders of the Registrar.

Practice Direction 18 of 2018 Efficient Conduct of Civil Litigation also applies under the new practice direction.

These practice directions are all intended to facilitate compliance with the overriding obligations under r 5 of the Uniform Civil Procedure Rules 1999 that the parties and the court resolve the real issues in the proceedings in a procedurally fair, efficient, timely, and cost effective way.

The new practice direction is based on the Supreme Court having the expectation that cases will either be resolved or ready for trial within 180 days of the defence, or the last of multiple defences, being filed. If not, the Supreme Court registry will issue an Intervention Notice to which the plaintiff must respond within 28 days by filing one of the following documents:

  • Notice of Discontinuance; or
  • Notice that the matter has settled; or
  • Request for Trial Date.

If the matter is neither resolved nor ready for trial, the plaintiff must file proposed orders, either by consent or otherwise, and the matter will be listed in the Caseflow Management List where the registrar will make the proposed orders, or refer the matter to a caseflow management conference, or list it before a judge for review.

Failure to comply with the practice direction may result in sanctions including adverse costs orders and immediately listing the proceedings for trial.

When cases are settled, they are placed in the Caseflow Settlement List and remain there until a Notice of Discontinuance is filed, or the court makes an order disposing of the matter.

The commentaries in the By Lawyers Supreme Court Acting for the Plaintiff and Acting for the Defendant guides have been updated accordingly.

Commercial List – QLD

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Supreme Court Practice Direction 1 of 2023 introduces new procedures for the Court’s Commercial List from 30 January 2023.

The Court has also issued supporting Notes that provide guidance about some practical aspects of the Commercial List, including parties, practitioners, directions, expert evidence, electronic filing and document management.

The key point of the new arrangements is that cases will be managed by a specific judge from start to finish. This includes interlocutory applications. Where the allocated judge is not available another Commercial List judge will step in.

The Practice Direction applies to existing and future commercial matters commenced in, or transferred to, the Brisbane registry. Commercial matter filed in another region will be subject to case management as appropriate in that region.

Matters can be put on the list by a party, or assigned by the court. The criteria is that the real issues involved in the matter are of a general commercial character, or arise out of trade and commerce, including e-commerce. The Practice Direction provides a non-exhaustive list of such issues:

  • the construction of a business contract, smart contract or other commercial
    instrument;
  •  insurance and reinsurance;
  • banking and financial services, including dealings in cryptocurrency;
  • the provision and enforcement of securities of any kind;
  • the conduct of business and commercial agents;
  • rights in, to, or concerning technology, including blockchain technology;
  • intellectual property;
  • partnership and joint venture relationships;
  • the export or import of goods or services;
  • the provision of goods or services by land, sea, air, cable, pipeline or through use
    of the internet for commercial purposes;
  • arbitral proceedings under the Commercial Arbitration Act 2013 (Qld);
  • the exploitation of natural resources;
  • conduct in and/or the operation of financial markets and exchanges;
  • data ownership, storage and security;
  • an appeal or judicial review relating to a tax, levy or royalty; and
  • directors’ duties, shareholder rights, capital raising, takeovers, compulsory
    acquisitions, buy-outs and windings up under part 5.4A of the Corporations Act
    2001 (Cth).

The By Lawyers Supreme Court (QLD) publications have been updated accordingly.

Overriding purpose – Litigation – QLD

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New case added to Queensland litigation guides

All six of the By Lawyers Queensland litigation guides have been updated to provide a link to a recent case on the importance of the ‘Overriding purpose’ provision of the UCPR and the costs sanctions that might apply where it is breached.

The ‘Overriding purpose’

Rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) provides that the overriding purpose of the rules is to provide for the expeditious resolution of the real issues in civil proceedings at a minimum of expense. That requires the courts to have the objective of avoiding undue delay, expense and technicality.

Under Rule 5 all parties to proceedings impliedly undertake to conduct their case in an expeditious way. Where they breach this undertaking, the court may dismiss the proceedings or apply costs sanctions. Francis v MSF Sugar Limited [2020] QSC 16 is a stark example of the court doing so.

Costs sanctions

In making indemnity costs orders in favour of the plaintiff in this case, the court noted:

[23] The defendant has conducted itself in this court quite unreasonably – failing to disclose directly relevant documents until the eve of the trial and pleading matters that were false,
according to its own records, and which it could not prove by admissible evidence. This unreasonable conduct has caused the plaintiff to incur unnecessary costs, including costs
thrown away by yesterday’s adjournment and today’s application and short adjournment. It also likely delayed the determination of the plaintiff’s claim and prevented the matter
resolving on an agreed basis without the need for a trial.

Publication updates

The commentary in each of the By Lawyers Queensland litigation guides already highlights the importance of the Overriding purpose provisions. This useful new case illustrates the court’s approach to compliance with Rule 5 and the possible sanctions that will be applied. it has been added to each of the Acting for the Plaintiff and Acting for the Defendant guides in the By Lawyers Supreme Court, District Court and Magistrates Court publications.

 

Service of documents outside Australia – QLD

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The rules in Queensland courts relating to service of documents outside Australia have been amended.

The Uniform Civil Procedure (Service Outside Australia) Amendment Rule 2019 (Qld) has inserted a new Chapter 4, Part 7, Division 1 into the Uniform Civil Procedure Rules 1999 (Qld). The new Division 1 of Part 7 consists of two subdivisions, dealing with the Supreme Court and the District and Magistrates courts respectively.

The amendments are to incorporate the harmonised rules for service of documents outside Australia originating from the Council of Chief Justices’ Rules Harmonisation Committee. The amendments are minimal, relating mainly to terminology and consistency between jurisdictions.

The rules provide for the service of documents outside Australia, not including New Zealand, which is already covered by the provisions of the Trans-Tasman Proceedings Act 2010 (Cth).

The commentaries in the following By Lawyers litigation guides have been amended accordingly:

Commercial arbitration – UCPR – QLD

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Recent amendments to the Uniform Civil Procedure Rules 1999 (UCPR) provide for processes when Queensland courts become involved in commercial arbitration matters.

The Uniform Civil Procedure (Commercial Arbitration) Amendment Rule 2019 (QLD) introduces a new Chapter 9A into the UCPR which deals with all aspects of arbitrations under the Commercial Arbitration Act 2013 (Qld) and the International Arbitration Act 1974 (Cth).

The Queensland Act is harmonised with commercial arbitration acts in other Australian jurisdictions and largely reflects the provisions of the UNCITRAL Model Law on International Commercial Arbitration as adopted by the United Nations Commission on International Trade Law on 21 June 1985, with amendments as adopted by that Commission in 2006 (‘Model Law’).

The new rules relate to applications under the Acts, or the Model Law, including applications:

  • for a stay and referral to arbitration in existing proceedings before the court;
  • to enforce a foreign arbitration award;
  • to issue subpoenas in arbitration matters;
  • relating to evidence for arbitrations;
  • relating to disclosure of confidential information in relation to arbitrations;
  • to set aside an arbitrator’s award;
  • to enforcement an arbitrator’s award;
  • for leave to apply to the court for the determination of a question of law arising in the course of an arbitration;
  • for leave to appeal on a question of law arising out of an award.

The commentaries in the By Lawyers litigation guides for QLD Supreme Court Civil and District Court Civil have been amended accordingly.

Standardised bail conditions – Criminal QLD

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The Queensland Supreme Court has developed and made available standardised bail conditions, through its Streamlining Criminal Justice Committee and Rules Committee.

The document is not a practice direction or court form and has no formal application; it is simply an attempt by the court to provide examples of clearer proposed bail conditions so that clients granted bail can better understand their obligations. The document is a useful aid in the drafting of proposed orders when bail is sought and might assist practitioners and their clients in seeking and obtaining bail before the Magistrates Court.

See the By Lawyers Criminal Magistrates Court matter plan for a copy of the Standardised Bail Conditions – and helpful commentary on bail applications generally.

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