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The Civil Procedure Act 2005 (NSW)

The Civil Procedure Act 2005 (NSW) commenced operation on 15 August 2005. The Act represents a major progression in the regulation of civil litigation in NSW. For the first time in history civil proceedings in the Supreme, District and Local Courts and the Dust Diseases Tribunal will be governed by one set of common rules.

The sections of various Acts that have been moved into the CP Act are largely sections governing common procedural, as opposed to substantive matters. Those sections include matters of common concern to all the courts such as, case management regimes, costs and interest.

The Act will also streamline and simplify procedures and remove unnecessary differences between courts. It will lead to time and costs savings for the courts, the legal profession and the public. The Act also makes provisions allowing courts to utilise new technologies such as electronic lodgement of documents by clients and more efficient court management practice.

The Uniform Civil Procedure project, which formulated the Act and its accompanying rules, commenced in early 2003. A working party was established and chaired by Justice Hamilton of the Supreme Court of New South Wales. The party consisted of representatives of the District Court, the Local Court, the Bar Association, the Law Society of New South Wales and the Attorney General’s Department.

The guiding philosophy of this process was to deliver a common set of rules across the various levels of jurisdiction within the NSW judicial system. Under this policy three specific goals were targeted; to provide a common set of rules, simplified where possible, but without radical changes in substance or form.

The Civil Procedure Bill was finalised in September 2004.

The new Act and rules generally apply to civil proceedings in the Supreme, District and Local Courts and the Dust Diseases Tribunal. The Act and rules largely reflect existing provisions and continue to use phrases that have a settled legal meaning. The Civil Procedure Act contains some provisions moved form the Supreme Court Act 1970, the District Court Act 1973 and the Local Courts (Civil Claims Act) 1970.

A number of acts have been repealed in the wake of the new Act. Statutes that regulate civil procedure such as the Arbitration (Civil Actions) Act 1983, the Damages (Infants and Persons of Unsound Mind) Act 1929, the Judgment Creditors Remedies Act 1901 and the Local Courts (Civil Claims) Act 1980.

The relevant provisions of these Acts that have survived the consolidation process have generally been moved into the CP Act and rules and the Local Courts Act 1982.

Despite the prevailing policy of the project to streamline civil procedure and create a uniform regime, some differences between different courts have been maintained. In most instances this was a matter of practicality. The approach adopted recognises the fact that not all proceedings are the same. For example simple debt claims in a Local Court should not be subject to the same requirements as complex proceedings in the Supreme Court.

In other cases time constraints prevented the working party from moving specialist civil rules regarding probate and appeals to the Court of Appeal into uniform rules. It is intended that work will commence on moving these specialist rules into the uniform rules after the commencement of the initial set. The Corporations Rules and the Admiralty Rules, will not be moved into the uniform rules because they operate on a federal basis and are therefore apply nationally.

The main changes in terms of structure are moving directions and case management rules to an early position in the CP Act. This step was taken to embody the overriding purpose to give effect to the requirement of a just, quick and cheap disposal of proceedings.

Apart from the above alteration to structure the order of the Supreme Court Rules and the District Court Rules has essentially been maintained, that is, the process from beginning to end. This has been done to keep the rules both logical and familiar to users.

The CP Act gives a statutory basis for the issue of practice notes and regulates the relationship between itself, the CP rules and the remaining balance of the present rules. The senior judicial officer will be able to issue practice notes to deal with specific aspects of civil proceedings in a court. Under the operation of s 15 of the Act the practice notes will be subject to the CP rules and they will be disallowable under Part 6 of the Interpretation Act.

Furthermore s 17 allows the Uniform Rules Committee to approve forms for use in civil proceedings. New simple common forms address a number of concerns that have been raised about the existing forms and will meet future electronic filing requirements. The forms are available on court websites, at court registries and via legal publishing companies.

This simplified set of common forms will be used in all courts. This helped to give effect to an important objective of the project as it will save on costs. Practitioners will only have to keep one set of forms on their records and fill the required categories depending on which court they were in.

In all three courts there are to be two forms only of originating process, that is, statement of claim and summons. Additionally the rules as to pleadings and discovery and interrogatories are to be maintained.

The recently harmonised rules that have been adopted on a federal level regarding subpoenas are to be adopted by the CP Act.