INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
PRACTICE NOTE NO. 14
First Issue Date:
|
9 June 2004
|
Re-Issue Date:
|
1 February 2010
|
Re-issued pursuant to Section 185A of the Industrial
Relations Act 1996 and Section 15 of the Civil Procedure Act 2005.
Pre Hearing
directions for applications under section 106 of the Industrial Relations
Act 1996
1. The purpose of
this Practice Note is to facilitate the resolution of section 106 matters
before the Industrial Relations Commission of New South Wales, by ensuring that
such proceedings are conducted before the Commission in an efficient and
expeditious manner and that practitioners and others who appear before the
Commission, do all they can to facilitate the just, quick and cost effective
disposal of such proceedings.
2. This Practice
Note has effect from the date of re-issue.
Conciliation under s109 - standard directions
3. The purpose of
conciliation is to resolve the proceedings by agreement, without proceeding to
a full hearing of the matter. Conciliation provides the parties with an
opportunity to reach agreement about some or all of the issues in dispute. It
is essential that the parties clearly identify the issues between them prior to
the conciliation. The Court's rules and directions also seek to minimise costs
incurred prior to conciliation.
4. The standard
directions set out in Rule 13.4 of the Industrial Relations Commission Rules
2009 apply in respect of matters listed for conciliation.
Unsuccessful conciliation - pre-hearing standard directions
5. (a) On
the issue of a certificate of unsuccessful conciliation, the standard
directions in paragraph 6 will apply, unless the Court makes alternative
directions.
(b) The directions
in the usual case shall be made at the end of the conciliation by the Judge or
Deputy President who has conducted the conciliation.
(c) Any agreement to
vary the standard directions may be dealt with at the conciliation, or later,
but in any case shall be subject to approval by the Court.
(d) After the
conciliation, consent variations or contested variations to standard directions
will usually be dealt with by the directions judge.
(e) Consent
variations may be dealt with in chambers. Applications for a listing for
directions (for contested applications to vary directions or where the Court
does not grant a consent application to vary) are to be made to the directions
judge.
(f) The Court is
likely to issue alternative directions in proceedings where, having regard to
all of the circumstances, including the amount of any claim and the cost of the
proceedings, the standard directions are not appropriate.
6. The standard
directions set out in Rule 13.7 of the Industrial Relations Commission Rules
2009 apply in respect of matters where a certificate of unsuccessful conciliation
has issued.
7. The directions
judge will fix a directions date in each matter. This is the date by which the
Court expects that the above steps will have been completed. In the usual case,
where the standard directions have been made, the date will usually be 12 to 13
weeks after the certificate of unsuccessful conciliation has been issued. An
explanation for any failure to comply with directions must be given at the
directions hearing, when the directions judge will issue further directions to
ensure that the matter is expeditiously prepared for hearing.
8. The Court
expects and requires that its orders will be observed. It is the obligation of
all parties and their legal practitioners and agents, including parties not in
default, to exercise vigilance in ensuring that the timetable is observed.
Notwithstanding the obligation of a party in default to bring the matter to the
Court's attention, a party not in default is also required to exercise the
liberty to apply to bring any default to the attention of the Court, after
giving the defaulting party reasonable notice of its default.
9. After these
steps have been attended to, the applicant or the applicant's legal
representative or agent must certify to the directions judge that the steps
have been completed.
10. The matter will
then generally be referred to a judge for hearing provided that the estimate of
the likely court time necessary for the hearing of the proceedings, including
addresses, is included in the certificate as having been provided by the legal
representative or agent of the parties who is in the best position to make the
assessment.
11. Where such steps
have been taken in matters before the directions judge prior to the
promulgation of this Practice Note, the applicant or the applicant's legal
representative or agent must certify that the steps have been completed. The
matter will then be referred to a judge for hearing, notwithstanding that some
steps required under the previous standard directions or the directions made in
the proceedings (but not under this Practice Note), have not been completed.
12. The further
preparation of the matter for hearing will be at the sole direction of the
trial judge, but the parties may anticipate that the trial judge will require
that the parties give their attention to the following matters:
(a) Whether further
conciliation is a realistic option, having regard to the evidence filed after
the first conciliation
(b) Clarification of
the issues calling for resolution in the proceedings. A list specifying such
issues shall be filed and served at least 5 working days prior to the first day
of the hearing.
(c) Any revised or
refined estimate as to the likely court time necessary for the hearing of the
proceedings, including addresses, further to the estimate given in terms of
paragraph 10 of this Practice Note. Any further estimate must be provided by
the legal representative or agent of the parties who is in the best position to
make such an assessment.
(d) Those parts of
the affidavit material which will not be pressed.
(e) Those parts of
the affidavit material to which objection will be taken, distinguishing
objections as to form from objections as to substance.
(f) Those deponents
not required for cross examination.
(g) Those matters about
which agreement can be reached.
(h) The availability
of witnesses who are required to give evidence including the possibility that
witnesses remote from the hearing may give evidence by video link and the
practicalities of such an arrangement. There should also be discussions about
the venue of the hearing or part of the hearing where a number of witnesses
reside in an area remote from the location of the Court.
(i) Whether the
rule in Brown v Dunn should not apply, where the necessary contrary factual
material is raised in the affidavit materials, subject to any order to the
contrary.
13. As a general
rule, parties may file additional affidavits to deal with any parts of
affidavits filed to which objections as to form have been taken. A trial judge may permit oral evidence to be
called at the hearing with respect to those parts of any affidavit material not
pressed or struck out, because of an objection as to form.
14. Parties have
liberty to apply generally on the giving of at least 24 hours notice to the
other side of the application for relisting and the purpose of the application.
Boland J, President
1 February 2010
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Printed by
the authority of the Industrial Registrar.