New Rules of Court for South Australia – Supreme and District Court Civil Rules 2006

New Supreme and District Court Rules commenced operation in South Australia on 4 September 2006.  They apply to all civil actions commenced after that date.

The new Rules have been drafted by Parliamentary Counsel.  Compared with the previous Rules they are relatively brief and plain English has been used where possible. They are set out in a “chronological” fashion intended to mirror the steps taken in litigation.

 Innovations

 “Shadow Experts”

The new Rules introduce the concept of a “shadow expert” [R161]. A shadow expert is engaged to assist in the preparation of a party’s case but not on the basis that he or she will be called to give evidence at trial (for example, an accountant engaged to inspect financial records and advise solicitors on appropriate questions to put to an expert). A report by the shadow expert need not be disclosed but notice that a shadow expert has been engaged must be given to other parties.  Absent “special reasons” shadow expert’s evidence is not admissible [R161(3)].

“Procedural irregularity”

Rules 4, 12 and 13 introduce the notion of a “procedural irregularity” and specify the consequences of such irregularities. Procedural irregularities include a failure to comply with procedural obligations; unnecessary delay; prolixity in the statement of a party’s case; the taking of an unnecessary, vexatious or improper step in a proceeding; or unreadiness to proceed to hearing or some other step at the time fixed by the Rules.  A procedural irregularity can be the basis for an application to dismiss an action or set aside a particular step in an action, however it will more likely be dealt with by an order for costs (including an order for costs against a lawyer if the court is satisfied that a lawyer is responsible for the irregularity).

“Primary and Secondary Actions”

The new Rules provide for two types of actions; a primary action and a secondary action [R28(2)].  An action that, when commenced, is separate from other actions in the Court is a called a primary action (for example when a plaintiff issues proceedings against a defendant).  An action that is commenced in the context of an existing action is called a secondary action.  Secondary actions are divided into two classes – “cross actions” and “third party actions” [R29(1)]. A cross action is, in effect, a counterclaim or a claim for indemnity or contribution by an existing party. A third party action sees the joinder of a party who is not already a party to the action (such as the joinder of a third or fourth or subsequent party to the action). Importantly, a cross action or third party action must be commenced at the time of filing and serving a defence [R35(3) and 36(4)].  This is contrary to the previous Rules where a third party notice could be issued within 14 days of filing a defence and a contribution notice could be issued within 7 days of filing a defence.

Interrogatories

Interrogatories are now referred to as “pre-trial examination by written questions” and may only be administered on application to the Court [R150].

Other changes

Pleadings

The new Rules as to pleadings, while completely redrafted, should not materially alter pleading practice.  However Rule 103(4) is important in that it provides that a party is bound at trial by any assertion of fact made in its pleadings or any admission of fact, unless the court gives the party permission to withdraw or amend the assertion or omission.

New Rule 217 provides that a party may be cross examined on its pleadings and that the court may draw an adverse inference on credit if there is a discrepancy between the pleadings and what is ultimately proved.  It will now more than ever be important to ensure that the pleadings properly reflect the evidence the party will lead at trial.

Offers to settle or consent to judgment

The requirement that a party gives 90 days notice of a claim has been retained in new Rule 33. However this Rule specifically requires that the 90 day notice must include an offer to settle the plaintiff’s claim.

The new Rules governing “Rules of Court offers” as they are often known, are of similar effect to the previous rules.  It is still not possible to file an offer for an “all inclusive” amount; separate amounts must be offered for damages and costs. The cost penalties applying to a party which fails to better a Rules of Court Offer at trial are unaltered.  A plaintiff may be required to pay the defendant’s costs from 14 days after service of the offer [R188(6)(b)(i)]; and a defendant may be required to pay the plaintiff’s costs on a solicitor and client basis [R188(6)(b)(ii)].

Costs

Substantial changes have been made to the Rules in respect of the taxation of costs to enable this to be fast tracked with minimum resources from the parties and the court.  The new Rules will require litigants to maintain proper cost records from the outset and should encourage the use of lump sum cost settlements in all cases.

Comments

Considering that the Rules have been completely re-drafted, it is perhaps surprising that they do not impose more significant changes upon the conduct of civil litigation in South Australian courts.

As the former Rules continue to apply to all proceedings issued before the commencement of the new Rules on 4 September 2006, it will be some time before there is any significant judicial interpretation of the new Rules.  The frugal drafting of the new Rules will allow for some imaginative interpretation by solicitors seeking a procedural advantage for their clients.  It is therefore reasonable to expect an increase in appeals from interlocutory decisions as the new Rules come into effect.

February 2007

 

REFERENCES:      Lunn’s Civil Procedure South Australia, Judge R M Lunn (Master, Supreme Court of SA) and papers presented by Justice Anthony Besanko (Federal Court); Justice Bruce Lander (Federal Court); Master Brian Norman (District Court of SA); Mark Livesey QC; and Alex Ward at the University of Adelaide on 26 August 2006.