Oswal v Yara Australia Pty Ltd
[2011] WASCA 121
•27 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OSWAL -v- YARA AUSTRALIA PTY LTD [2011] WASCA 121
CORAM: McLURE P
BUSS JA
HEARD: 24 MARCH 2011
DELIVERED : 24 MARCH 2011
PUBLISHED : 27 MAY 2011
FILE NO/S: CACV 35 of 2011
BETWEEN: RADHIKA OSWAL
Appellant
AND
YARA AUSTRALIA PTY LTD
First RespondentPANKAJ OSWAL
Second RespondentBURRUP HOLDINGS LTD (Receivers and Managers Appointed)
Third RespondentTOR HOLBA
VINOJIT AMBALAVANER
Fourth RespondentsBURRUP FERTILISERS PTY LTD (Receivers and Managers Appointed)
Fifth RespondentRAMESH SODUM
Sixth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :KENNETH MARTIN J
Citation :OSWAL -v- YARA AUSTRALIA PTY LTD [2011] WASC 76
File No :CIV 3078 of 2010
Catchwords:
Practice and procedure - Commercial and Managed Cases List - Strategic conference - Purpose of strategic conference - Primary judge refused appellant's application to excuse personal attendance at strategic conference - Purpose of the attendance of a party at strategic conference - Whether the primary judge erred in dismissing the appellant's application
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4B
Supreme Court Practice Direction, 4.1.2, pars 9 - 16
Result:
Leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
Appellant: Mr M N Solomon & Ms J M Hill
First Respondent : Mr R W Douglas & Mr D M Benson
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondents : No appearance
Fifth Respondent : No appearance
Sixth Respondent : No appearance
Solicitors:
Appellant: Norton Rose Australia
First Respondent : Clayton Utz
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondents : No appearance
Fifth Respondent : Freehills
Sixth Respondent : No appearance
Case(s) referred to in judgment(s):
House v The King [1936] HCA 40; (1936) 55 CLR 499
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
Oswal v Yara Australia Pty Ltd [2011] WASC 76
Western Areas Exploration Pty Ltd v Streeter [No 2] [2009] WASCA 15; (2009) 40 WAR 1
McLURE P: I joined in the orders made by the court on 24 March 2011 generally for the reasons given by Buss JA.
BUSS JA: On 24 December 2010, the appellant (Mrs Oswal) commenced proceedings by a writ of summons filed in the Supreme Court (CIV 3078 of 2010) against the first respondent (Yara), the second respondent (Mr Oswal), the third respondent (BHL) and the fourth respondents (Holba and Ambalavaner).
The proceedings were admitted to the Commercial and Managed Cases (CMC) List.
The pleadings in the Supreme Court proceedings
A statement of claim was endorsed on the writ of summons.
On 4 February 2011, Yara filed a defence and counterclaim. The fifth respondent (Burrup Fertilisers) and the sixth respondent (Mr Sodum) were joined as the fifth defendant by counterclaim and the sixth defendant by counterclaim respectively.
On 4 March 2011, Mrs Oswal filed an amended writ of summons and an amended statement of claim.
On 18 March 2011, Yara filed a substituted defence and counterclaim.
Mrs Oswal's amended statement of claim and Yara's substituted defence and counterclaim relate to, amongst other things:
(a)a share sale agreement dated 19 September 2008 (Share Sale Agreement) entered into by Yara, Mr Oswal in his personal capacity and as trustee of the Burrup Trust (the Trust), and Mrs Oswal;
(b)a deed of assumption entered into by Mrs Oswal on or about 13 October 2009 (the Deed of Assumption); and
(c)written resolutions apparently passed on 17 December 2010 (the Purported Resolutions) relating to certain officers of BHL.
In her prayer for relief in the amended statement of claim, Mrs Oswal claims, relevantly:
1.A declaration that since the Share Sale Agreement alternatively since the Deed of Assumption, [Mrs Oswal's] and [Mr Oswal's]
entitlements to appoint directors of BHL and through such directors, to voting power on the Board of BHL, have been as pleaded in paragraphs 22(1), (2), (3) and (4) or Yara is estopped from denying that they are so entitled.
2.A declaration that Mr Sodum was validly appointed by [Mrs Oswal] as a director of BHL on or about 22 November 2010.
3.A declaration that the Purported Resolutions are invalid and of no force and effect.
4.Alternatively, an order that the agreement between Yara, [Mr Oswal] and [Mrs Oswal] in clause 5(b) of the Share Sale Agreement be rectified so that it includes the terms set out in paragraphs 22(1), (2), (3) or (4).
5.Alternatively an order pursuant to section 233 of the Act that the agreement between Yara, [Mr Oswal] and [Mrs Oswal] in clause 5(b) of the Share Sale Agreement be amended so that it includes the terms set out in paragraphs 22(1), (2), (3) or (4).
It is sufficient to note, for present purposes, that Yara, in its substituted defence and counterclaim, denies most of the principal allegations in the amended statement of claim, pleads its own case in relation to BHL and various disputes between BHL's directors and shareholders, and counterclaims extensive declaratory relief in relation to various commercial documents, including the Share Sale Agreement, and the validity of various resolutions, appointments and other actions taken or purportedly taken by various parties to the proceedings in relation to BHL.
The orders made by the primary judge in relation to a strategic conference
On 17 February 2011, Kenneth Martin J made orders pursuant to the practice direction entitled 'Case Management by Judges ‑ the Commercial and Managed Cases (CMC) List'. The orders included listing a strategic conference for 25 March 2011 and requiring the personal attendance of all parties.
By application dated 16 March 2011, Mrs Oswal sought an order, relevantly, that she be permitted to attend the strategic conference by video link.
On 22 March 2011, the primary judge refused Mrs Oswal's application and, in effect, affirmed his order that Mrs Oswal attend the strategic conference in person.
The urgency of the proceedings and the fixing of provisional trial dates
Before 17 February 2011, Yara filed affidavits in which it contended that it was necessary for the proceedings to be tried urgently, and that all interlocutory procedures should be completed expeditiously.
On 17 February 2011, provisional dates for a five day trial were set aside in early May 2011, but the proceedings were not actually listed for trial.
The appeal to this court
On 22 March 2011, Mrs Oswal made application to this court for leave to appeal from the primary judge's decision to dismiss her application to attend the strategic conference by video link.
On 24 March 2011, McLure P and I heard the application for leave to appeal. We granted leave and allowed the appeal. We said that reasons for our decision would be published later. These are my reasons.
Affidavits filed in support of and opposition to Mrs Oswal's application before the primary judge
Mrs Oswal filed two affidavits in support of her application before the primary judge. They comprised an affidavit of her solicitor, Jennifer Mary Hill, sworn 18 March 2011, and another affidavit of Ms Hill sworn 18 March 2011 which attached an affidavit of Mrs Oswal affirmed 17 March 2011.
Yara filed in opposition to Mrs Oswal's application an affidavit of Gabrielle Suzanne Holly affirmed 21 March 2011 and an affidavit of Lauree Danielle Coci sworn 21 March 2011.
In her affidavit, Mrs Oswal deposed, relevantly:
(a)She holds 35% of the issued share capital of BHL. BHL holds 100% of the issued share capital of Burrup Fertilisers (par 3).
(b)She currently resides in Dubai with her husband, Mr Oswal. Dubai became the principal residence for her and her family in January 2011 (par 6). (Previously, Mrs Oswal and her family had resided principally in Western Australia.)
(c)She would need to leave Dubai on a 2:40 am flight on 24 March 2011 and return on a flight that arrives at 5:30 am in order to attend the strategic conference in person, including a 10‑hour 30‑minute flight each way (par 7).
(d)She has two daughters, aged 7 and 10 years. Her elder daughter is currently at boarding school in India. She is due to return home on 26 or 27 March 2011 until 5 April 2011. Her younger daughter resides with her and her husband in Dubai. She is her primary carer. Her younger daughter attends day school in Dubai (par 8).
(e)Due to the impending arrival of her elder daughter on holidays, she has not arranged any business travel from 25 March 2011 so that she can spend time with her elder daughter. That, combined with the attendance of her younger daughter at school in Dubai, makes it very difficult for her to attend Perth on 25 March 2011 for the strategic conference (par 9).
(f)On or about 22 February 2011, she was informed by her Australian accountant that the Australian Taxation Office had served notices of assessment addressed to her and seeking payment of $140 million. She disputes the assessments (par 10).
(g)She is concerned that if she returns to Australia to attend the strategic conference, the Australian Taxation Office may issue a departure prohibition order against her personally (par 12).
(h)She is informed by Ms Hill that Ms Hill's firm, Norton Rose Australia, has an office in Dubai with video conferencing facilities (par 17).
Supreme Court practice direction 4.1.2
Supreme Court practice direction 4.1.2 is headed 'Case Management by Judges ‑ the Commercial and Managed Cases (CMC) List'. I have set out the relevant provisions of the practice direction in schedule 1 of these reasons.
Paragraphs 9 ‑ 16 of practice direction 4.1.2 (being the provisions concerned with strategic conferences) came into operation on 29 November 2010.
Supreme Court O 1 r 4B
Order 1 r 4B of the Rules of the Supreme Court 1971 (WA) is referred to in pars 6 and 8 of practice direction 4.1.2. I have set out O 1 r 4B in schedule 2 of these reasons.
The primary judge's reasons
The primary judge published written reasons for decision. See Oswal v Yara Australia Pty Ltd [2011] WASC 76.
His Honour's reasons for dismissing Mrs Oswal's application were, relevantly, as follows:
(vi)The explanations or rationalisations provided by Mrs Oswal, as plaintiff and the initiator of these proceedings, do not in my view support her being excused from a personal attendance or indeed to permit her to attend by video link. As the party that has instituted these proceedings, and who is now responsible for a significantly altered amended statement of claim filed on 3 March 2011, her personal attendance in my view is of paramount importance.
(vii)Mrs Oswal's explanations concerning potential travel difficulties in reaching Perth from the Middle East, where she seems to be now located, in order to personally attend a strategic conference this looming Friday, are not in my assessment convincing. The material filed before me shows that commercial flights (via, for instance, Emirates) are indeed available so as to reach Perth via Dubai. Furthermore, the option of private air transport would not appear to have been addressed as a potential option towards Mrs Oswal's attendance.
(viii)Mrs Oswal's explanation concerning her elder daughter needing supervision by her whilst she is out of boarding school from India on an out of term break, is also not in my view persuasive. There is no reason why family members or indeed a nanny or nannies would not be capable of addressing short term supervision responsibilities concerning Mrs Oswal's daughter or daughters.
(ix)Another matter proffered by way of excuse concerns Mrs Oswal's fears about the potential conduct of the Australian Taxation Office taking steps to prevent her from departing the jurisdiction of Australia by reason of a recent tax assessment issued against her. Such considerations in my view are wholly irrelevant and extraneous to these proceedings.
(x)Where all parties agree that personal attendance of one party at a strategic conference be excused, that would provide a significant consideration. In the present case, however, both Yara, the firstnamed fourth defendant (Mr Holba) and the fifth defendant by counterclaim, all firmly oppose Mrs Oswal being excused from personal attendance at the strategic conference this Friday.
(xi)Mrs Oswal commenced these proceedings on Christmas Eve 2010 as an invocation of the court's process. A person who seeks the advantages of utilising the court's processes as a litigant must also accept the normal responsibilities associated with such a privilege. In the present case, that extends to compliance with the court's practice directions concerning an important aspect of case management in relation to a matter running in the CMC List of this Court.
(xii)It would seem that Mrs Oswal finds herself absent from Western Australia as a matter of personal choice. Therefore, any difficulties or inconveniences posed to her by need to personally attend as a plaintiff at a strategic conference held in accordance with the practice and procedures of the Supreme Court, in my view are largely difficulties of her own making - predicated upon her decision to take up residence outside Western Australia. (emphasis added)
The grounds of appeal
Mrs Oswal relied on five detailed grounds of appeal. It is unnecessary to reproduce them.
The critical grounds, as developed at the hearing, alleged in substance:
(a)the primary judge erred in that he failed to give any reasons for his conclusion that Mrs Oswal's personal attendance at the strategic conference was of 'paramount importance';
(b)his Honour erred in basing his decision on Mrs Oswal's apparent failure to have addressed the option of 'private air transport' as a mode of travel in that this was, in the circumstances, unreasonable;
(c)his Honour erred in deciding that a person who commences proceedings in the Supreme Court is invoking a privilege;
(d)his Honour erred in basing his decision on Mrs Oswal having decided to change her principal place of residence from Western Australia to Dubai in that basing his decision on this factor was, in the circumstances, unreasonable; and
(e)error in the exercise of his Honour's discretion in relation to Mrs Oswal's application is to be inferred in that, upon the facts, the result embodied in his orders is unreasonable or plainly unjust. See House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).
The purpose of a strategic conference
The strategic conference, as an instrument of case management in the Supreme Court, was introduced with effect from 29 November 2010.
Ordinarily, the first hearing of a matter in the CMC List will be conducted as a strategic conference. Before the conference, the parties and their legal representatives must give specific and careful consideration to the ways in which the objectives of case management in the CMC List might be best achieved in the particular circumstances of the case. At the conference, the parties are to present their proposals in that regard. The purpose of the strategic conference is to devise a general strategy for the future management of the case.
The objectives of case management in the CMC List are, relevantly, as follows. First, to bring cases to the point where they can be resolved by mediation or tried in the quickest, most cost effective way, consistently with the need to provide a just outcome. Secondly, the principle of proportionality is applied in relation to the achievement of this general objective. The principle of proportionality, as embodied in O 1 r 4B, has the purpose of, relevantly, ensuring that applicable procedures in a matter, and the cost of those procedures to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute and to the financial position of each party.
A strategic conference will be for a duration of up to one hour. The conference will ordinarily be held in a conference room rather than a court room. The proceedings will be recorded and transcribed, as appropriate, and unless otherwise agreed and directed by the judge who is the case manager, any statements of position made by the parties will be 'on the record'.
All counsel who have been briefed in the matter are required to attend a strategic conference together with the most senior solicitor representing each party. The legal representatives must be as fully briefed as is practicable. At the commencement of the conference, a legal representative of each party must provide a short presentation upon the issues which, it is contended, require determination, and the position of the party he or she represents in respect of each issue.
The practice direction requires that at a strategic conference the following issues (at least) be addressed:
(a)the best method for identifying the issues which require determination;
(b)the best method for identifying the facts which can be agreed, and the facts which are contentious;
(c)whether it would be desirable to have a preliminary determination of any specific issues of fact or law;
(d)the most appropriate approach to be taken in relation to discovery;
(e)the most appropriate point in the preparation of the case for a mediation to be conducted;
(f)the steps that should be completed before a mediation takes place; and
(g)the most appropriate approach to be taken with respect to expert evidence.
The purpose of the attendance of a party, as distinct from his or her legal representatives, at a strategic conference
The practice direction states that the judge who is the case manager 'will ordinarily direct that the parties will be required to attend' a strategic conference. (emphasis added) I note that this refers merely to attendance, and not to attendance in person.
The purpose of ordinarily requiring the attendance of the parties would appear to be, first, to facilitate the obtaining of instructions by legal representatives from the parties, secondly, to enable the parties to obtain a direct appreciation of the issues being discussed and the general strategy to be adopted for the future management of the litigation, and, thirdly, to enable the parties to see for themselves that the judge and the legal representatives are endeavouring to facilitate the efficient conduct of the litigation at a reasonable cost.
The merits of the appeal
The primary judge's decision to dismiss Mrs Oswal's application appears to have been based on seven factors.
First, her personal attendance at the conference was of 'paramount importance'. Secondly, the possibility of 'private air transport' from Dubai to Perth had not been addressed as a 'potential option towards Mrs Oswal's attendance'. Thirdly, there was no reason why other arrangements could not be made for the short term supervision of Mrs Oswal's daughter or daughters. Fourthly, the possibility of the Australian Taxation Office taking steps to prevent her departing Australia was 'wholly irrelevant and extraneous to these proceedings'. Fifthly, Yara, Mr Holba and Burrup Fertilisers 'firmly' opposed Mrs Oswal being excused from personal attendance. Sixthly, any litigant who seeks to take advantage of the court's processes must accept the 'normal responsibilities associated with such a privilege', and these responsibilities include personal attendance at a strategic conference as ordinarily contemplated by the practice direction. Seventhly, Mrs Oswal had absented herself from Western Australia 'as a matter of personal choice' and, in consequence, any difficulties or inconvenience arising from the need personally to attend the strategic conference were 'largely difficulties of her own making'.
As to the first factor, the primary judge did not explain why Mrs Oswal's personal attendance at the strategic conference was of 'paramount importance'. The conclusion as to 'paramount importance' was merely an assertion. It was not supported by any facts or reasons.
As to the second factor, it was, in my respectful opinion, unreasonable to expect Mrs Oswal to enquire about the chartering of a private aircraft (as distinct from booking a ticket on an ordinary commercial flight) to travel from Dubai to Perth, at least where his Honour's conclusion as to 'paramount importance' was not supported by any facts or reasons.
As to the third factor, it was reasonable to expect that arrangements could be made for the short term supervision of Mrs Oswal's daughter or daughters.
As to the fourth factor, I respectfully agree with his Honour that any action which might be taken by the Australian Taxation Office to prevent Mrs Oswal's departure from Australia was an irrelevant consideration in deciding whether her application should be granted or not. On the appeal, this was accepted by Mrs Oswal's counsel.
As to the fifth factor, the opposition by some of the respondents to Mrs Oswal being excused from personal attendance at the strategic conference was a matter to be taken into account. The weight to be given to this factor depended, however, upon the cogency of any rationale for requiring her attendance in person as distinct from her attendance by video link.
As to the sixth factor, invoking a court's process is not a privilege. It is a right. See Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, 252 (Deane J). It is, of course, correct that a person who commences proceedings in the Supreme Court must comply with the rules, practice directions and procedures of the court. However, an application for dispensation from an ordinary requirement of a practice direction is to be determined on its merits and by reference to the particular facts and circumstances, and not on the basis that the litigant has, by commencing proceedings, taken advantage of a privilege.
As to the seventh factor, it was, in my respectful opinion, unreasonable to base the dismissal of Mrs Oswal's application on her decision to move her principal place of residence from Western Australia to Dubai. There was no legal obligation on Mrs Oswal to continue to reside in this State until the litigation she had commenced was resolved. There was no finding or foundation in any evidence before his Honour that Mrs Oswal had changed her principal place of residence for the purpose of obtaining some collateral advantage or benefit in the proceedings.
In my opinion, it was critical in determining Mrs Oswal's application to identify the objects sought to be achieved at the strategic conference in question; to elucidate whether and, if so, how Mrs Oswal's attendance in person at the conference, as distinct from her attendance by video link, would be conducive to the attainment of those objects; and to evaluate whether and, if so, to what extent the utility of Mrs Oswal's attendance in person, as distinct from her attendance by video link, was disproportionate to the cost and inconvenience to her of travelling from Dubai to Perth.
At the hearing of the appeal, we were informed that neither counsel for Mrs Oswal nor counsel for Yara had ever attended a strategic conference. Also, we were informed that, as at 24 March 2011 (with the strategic conference scheduled for 25 March 2011), no correspondence, minutes or other documents had been exchanged between any of the legal representatives of any of the parties in relation to any of the matters to be addressed at the strategic conference (appeal ts 20). There was nothing before the primary judge or this court as to what, if anything, was specifically within the minds of the parties or their legal representatives as to the general strategy any of them hoped to propose for the future management of the litigation.
Several factors militated against requiring Mrs Oswal's attendance in person at the strategic conference.
First, it is apparent from the material before this court that the primary participants at the strategic conference would be the legal representatives of the parties. The issues which the practice direction expressly requires be addressed at a strategic conference are, of their nature, issues which require the application of the professional skill, knowledge and experience of the legal representatives to the contentious issues of fact and law raised on the pleadings.
Secondly, it is a remarkable feature of the present case that, as I have mentioned, as at 24 March 2011 (with the strategic conference scheduled for the next day) no correspondence, minutes or other documents had been exchanged between any of the legal representatives of any of the parties in relation to any of the matters to be addressed at the strategic conference. This absence of communication between the legal representatives, about 24 hours before the scheduled conference, indicates that it was likely that the strategic conference would be confined (primarily if not entirely) to the issues which the practice direction expressly requires be addressed.
Thirdly, the duration of the conference was only one hour and it is likely, in the circumstances, that most of that time would be devoted to a discussion of forensic matters between the primary judge and the legal representatives.
Fourthly, an analysis of the pleadings reveals that the disputes between the parties as defined in the pleadings are concerned, to a significant extent, with matters of law; in particular, the proper construction of the Share Sale Agreement, the Deed of Assumption, the constitution of BHL and other commercial documents. I accept that there will be important issues of fact that will be in contest at the trial, but I note that only five days were reserved in early May 2011 as the provisional trial dates.
Fifthly, the practice direction requires that the legal representatives who attend a strategic conference be 'as fully briefed as is practicable at that stage of the case'. This indicates that the legal representatives should obtain from the parties before the conference all instructions which may be required for the attainment of the objectives of the conference.
Sixthly, attendance by video link would enable Mrs Oswal to obtain a direct appreciation of the issues being discussed and the general strategy to be adopted for the future management of the litigation. Also, attendance by video link would enable her to see for herself that the primary judge and the legal representatives of the parties were endeavouring to facilitate the efficient conduct of the litigation at a reasonable cost.
Seventhly, the attendance in person of Mrs Oswal would require her to be away from home for two or three days. She would have to bear the cost and inconvenience of 21 hours of travel on an aircraft and the cost of accommodation in Perth for one or two nights.
The factor militating in favour of Mrs Oswal's attendance in person at the strategic conference was the greater difficulty that her legal representatives would have in obtaining instructions from her if she attended by video link. The practice direction does not contemplate adjournments of the kind that frequently occur in the course of conducting a mediation. Also, the time allocated for the conference was limited to one hour.
In my opinion, when:
(a)the primary judge's unsupported assertion of 'paramount importance';
(b)his Honour's reliance on Mrs Oswal's failure to enquire about the chartering of a private aircraft; and
(c)his Honour's reference to a court's process being a privilege,
are disregarded, as they must be, the factors which militated against requiring Mrs Oswal's attendance in person at the strategic conference overwhelmingly outweighed the factor militating in favour of her attendance in person.
The use of video link facilities is a frequent occurrence in contemporary litigation in the Supreme Court and in other jurisdictions throughout Australia. It is used extensively in circumstances where the attendance in person of counsel, a party or a witness is not essential and there is a reasonable basis for permitting the person's attendance by video link.
Mrs Oswal's attendance in person at the strategic conference was not essential. The cost and inconvenience to her was significantly disproportionate to the utility of her attendance in person. The only conclusion reasonably open to the primary judge on the facts was to grant Mrs Oswal's application for an order that she be permitted to attend by video link. Error by his Honour is to be inferred.
I emphasise, however, that in the course of the pending proceedings it may well be essential for Mrs Oswal to attend an interlocutory conference or other proceeding in person; for example, a mediation conference. My decision in this appeal relates only to the strategic conference that was scheduled for 25 March 2011.
The grounds of appeal, as developed at the hearing, raised some points of general importance in the context of a recently formulated practice direction which applies to all cases admitted to the CMC List. It was therefore in the interests of justice that leave to appeal be granted. See Western Areas Exploration Pty Ltd v Streeter [No 2] [2009] WASCA 15; (2009) 40 WAR 1 [18].
SCHEDULE 1
Practice direction 4.1.2
Objectives of the CMC list
6.The general objective of the CMC List is to bring cases to the point where they can be resolved by mediation or tried in the quickest, most cost effective way, consistently with the need to provide a just outcome. The principle of proportionality is applied (Order 1 rule 4B). (emphasis added)
7.The Court also takes account of the need to allot to each case an appropriate share of the Court's limited resources, while taking into account the need to allot resources to other cases. The parties and their legal advisers are encouraged to assist the Court to achieve these objectives.
8.Having regard to the objectives specified in Order 1 rule 4B, parties should carefully consider the ambit of any discovery sought. As appears from the usual orders, parties should give consideration to the provision of discovery in stages, or on particular issues only.
The Strategic Conference
9.The Court will generally require the parties and their legal representatives to give specific and careful consideration to the ways in which the objectives of case management in the CMC list might be best achieved in the particular circumstances of the case, and to present their proposals in that regard at a strategic conference to be held before the case manager.
10.The case manager may direct that a strategic conference not be held, or that it be held at a later time ‑ for example, after pleadings have closed. However, unless such a direction is made, the first hearing of the matter in the CMC List will be conducted as a strategic conference.
11.The strategic conference will be given a special appointment of up to one hour's duration. It will generally be held in a conference room rather than a courtroom. Proceedings will be recorded and transcribed as appropriate. The case manager will ordinarily direct that the parties will be required to attend. (emphasis added)
12.In the case of a corporate party, the officer or officers representing the party at the strategic conference must have authority to make decisions and provide instructions with respect to all aspects of the future management of the case. All counsel who have been briefed are to attend the conference together with the most senior solicitor representing each party.
13.At the commencement of the strategic conference, the case manager will call upon a legal representative of each party to provide a short presentation upon the issues which that party considers require determination, and the position of that party in respect of each issue. Legal representatives should be as fully briefed as is practicable at that stage of the case. Unless otherwise agreed and directed by the case manager, those statements of position will be 'on the record'.
14.The strategic conference will address the following issues (at least):
(i)the best method for identifying the issues which require determination;
(ii)the best method for identifying the facts which can be agreed, and the facts which are contentious;
(iii)whether it would be desirable to have a preliminary determination of any specific issues of fact or law;
(iv)the most appropriate approach to be taken in relation to discovery;
(v)the most appropriate point in the preparation of a case for a mediation to be conducted;
(vi)the steps that should be completed before a mediation takes place;
(vii)the most appropriate approach to be taken with respect to expert evidence.
15.Parties and their representatives will be encouraged by the case manager to present proposals that are the most appropriate for the particular circumstances of the case. The discernable tendency to indiscriminately apply the standard directions to every case, whether appropriate or not, will be actively discouraged.
16.The objective of the strategic conference will be to devise a general strategy for the future management of the case. Directions implementing that strategy may be made by the case manager at the conclusion of the conference.
SCHEDULE 2
Order 1 r 4B
(1)Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of ‑
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business; and
(e)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
(2)These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in paragraph (1).
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