Changes To The District Court Rules 2005

Introduction

By Notice to Practitioners dated 7 February 2014, the District Court announced a number of amendments to the District Court Rules 2005 (“The Rules”). Among other things, the amendments affect the following procedural issues:

Arranging medico-legal appointments
Consideration of and making Order 24A Offers of Compromise
Dismissal (or, more appropriately, reinstatement) of actions under Order 44G of the Rules
Conduct of Mediation Conferences
Notification of “Interested Non-Parties” (Including insurers)
The creation of a new Form for an Originating Summons
Counsel must include a pinpoint reference when case law is cited in submissions
Changes to procedural requirements on Entry for Trial

The changes were gazetted on 31 December 2013 and are in effect from 20 January 2014.

Medico-Legal Appointments

The new Rule 47B allows defendants to arrange for a plaintiff to attend certain ancillary health professionals for examination. Up until the change was made, the defendant was limited to making an appointment with a medical practitioner. The Court specifically referred to the decision of the then Principal Registrar in Reynolds -V- The State of Western Australia [2013] WADC 67 as the inspiration for this change.

The new rule 47B permits defendants to make appointments with practitioners from the following disciplines:

(a) dental;

(b) medical;

(d) optometry;

(e) physiotherapy; and

(f) psychology.

This represents a significant development for defendants in personal injury matters. In particular, it offers CTP insurers an opportunity to arrange reviews – with the provider of the defendant’s choosing – where s 30 of the Motor Vehicle (Third Party Insurance) Act 1943 would not permit the arrangement of those reviews. The key difference is the removal of the caveat that the provider must be a medical practitioner. For other insurers, who do not have the benefit of a provision equivalent to s 30 of the MV Act, the effect is the same.

One aspect of the new Rule that must be noted is the requirement for the potential expert witness to be registered with the correct authorities under the Health Practitioner Regulation National Law (Western Australia) Act 2010. This is something that must be addressed when arrangements are being made for reviews. We suggest a question be inserted into any referral letter in the following terms:

For the purpose of medico-legal reviews, Order 47 B of the District Court Rules 2005 requires that you be registered with The Australian Health Practitioner Regulation Agency. Please advise us of the status of your registration accordingly.

There is nothing in the new Order 47B to limit the operation of s 30 of the MV Act or Order 36A of the Rules of the Supreme Court concerning appointments made with medical practitioners.

Order 24A Offers to Compromise

Order 24A (10)(4) of the Rules of the Supreme Court provides:

(4) Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, in addition to his costs incurred before that date, all such costs to be taxed on a party and party basis.

The new Rule 42A of the District Court Rules removes this Rule from operation in the District Court. The specific reference is found in the new Rule 42 A (2):

(2) The RSC Order 24A rule 10(4) does not apply to a case.

The new Rule 42A further provides:

(3) Subrule (4) applies if —

(a) an offer is made by a plaintiff; and

(b) the offer is not accepted by the defendant; and

(d) the judgment is no less favourable to the plaintiff than the terms of the offer.

(4) Unless the Court otherwise orders, the plaintiff is entitled to an order against the defendant for —

(a) the plaintiff’s costs in respect of the claim from the date on which the offer was made, taxed as between a law practice and its client; and

(b) the plaintiff’s costs incurred before that date, taxed on a party and party basis.

The term “taxed as between a law practice and its client” reflects the new terminology for costs taxed on a “solicitor/client basis” as it is found in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012. This is not, strictly speaking, an order for “indemnity costs” as that order is commonly understood. In fact, the Court was at pains to point out in the Notice to Practitioners that the previous use of that term was found to have been unnecessarily pejorative.

The most obvious practical effect of this change will be to enable the taxing officers of the District Court to make allowances under item 33 of the Scale: “Other work”. Item 33 (a) of the Scale provides:

Time reasonably spent by a legal practitioner on work requiring the skill of a legal practitioner (of the standing indicated) but not covered by any other item

Item 33 (b) of the Scale provides:

Time reasonably spent by a legal practitioner, or by a clerk or paralegal of a legal practitioner, on work not covered by any other item or by paragraph (a)

In a taxation assessed on a party and party basis, the Court is not permitted to make allowances under this item. That limitation is imposed by clause 9 (2) (b) of the Determination:

Allowances made under item 33 of Table B are only to be awarded as between a law practice and its client, or if costs are awarded on an indemnity basis and not between party and party unless the Court otherwise orders.

Under the new Rule 42A, that restriction will not apply to matters where the Court makes an order under Rule 42A (3). In taxing a bill of costs under this item, the defendant is exposed to a further allowance – in addition to all other items in the Scale – which does not have an upper limit. Item 33 simply sets the allowance on an hourly rate. If a plaintiff can show that the work was done, required the skill of a legal practitioner (of the standing indicated) and is not covered by any other item, the allowance can be made.

We have no statistics on how much, in dollar terms, this extra item might mean, but it is possible to consider some hypotheticals. For example, the current hourly rate for a senior practitioner is $451.00: Table A to Clause 8 (d) of the Scale. If a plaintiff with the benefit of an order under the new Rule 42A is able to prove that extra work was required and that extra work is not covered under an alternative item within the Scale, then it is only necessary for the plaintiff’s lawyers to justify a little over 22 hours’ work to gather an extra $10,000.00 from the defendant. When a matter proceeds to trial it is not unrealistic to expect that plaintiffs would be able to justify that increased time.

One other point is necessary to consider in light of this amendment. The terms of the new Rule 42A do not refer to judgment after trial. Rule 42A (3)(c) simply requires the plaintiff to “obtain judgment”. It is my view that a consent judgment for an amount that is less favourable in its terms than an offer put by a plaintiff will still attract an order for costs to be assessed on a law practice/client basis.

Clearly, consideration must be given to costs when settling matters where the plaintiff has made an Order 24A Offer of Settlement.

Order 44G Dismissals

Conduct of Mediation Conferences

Notifications of Interested Non-Parties

The new form 1AA is reproduced below:

New Form for Originating Summons

The new Rule 23B makes it clear that when filing an originating summons, the issuing party must use the new Form 1B. For the sake of convenience, the new Form is reproduced below:

District Court of Western Australia Held at Perth ¹			Application No:
			Originating summons
Parties		Applicant Respondent
Date of filing
Act or rule that allows the application ²
Summons
You, [ respondent ] of [ respondent’s address ], are required to attend before the Court on the date set out in this summons for the hearing of an application that:1. 2. 3. 4. 5.
Hearing date ³	Date:Time: Place: District Court Building, 500 Hay Street, Perth ¹
Notice to the respondent	If you do not attend before the Court on the date set out in this summons, the Court may make such orders as it considers just and expedient in your absence.If you wish to be heard on this application, you must file a Form 1AA (Memorandum of appearance) under the District Court Rules 2005 before, or on, the date set out in this summons.
Applicant’s contact and service details
Geographical address of applicant(Must be provided unless otherwise ordered by the Court: see Rules of the Supreme Court 1971 Order 71A rule 2 and District Court Rules 2005 rule 22C)
Name of lawyer(If one has been appointed)
Postal address for service of documents(Must be provided)
Email address(Optional — if provided, may be used for service of documents)
Fax number(Optional — if provided, may be used for service of documents)
Telephone number
Reference
Signature of applicant or lawyer	Applicant/lawyer			Date of signing:

This change will have specific relevance for lawyers representing the CTP Division of ICWA. This is because Originating Summonses are used to commence applications for orders for commencement of proceedings under s 29 (2) of the MV Act or orders for a stay under s 30 of the MV Act.

For other insurers, it is not uncommon for plaintiffs to commence proceedings for compromise orders under O70 of the RSC by originating summons. Plaintiffs that choose that option will need to use the new Form 1B.

Pinpoint Referencing

New procedural Requirements on Entry for Trial

Form 1 in the Schedule to DCR is the Entry for Trial. According to the Notification, the Form has been amended to “make the certification clearer and to allow for the date of the pre-trial conference to be endorsed on the Entry for Trial notice rather than under a separate letter)”.
The new Form 1 is reproduced below:

District Court of Western AustraliaHeld at Perth ¹			Action No:
			Entry for trial
Matter	[ Names of all parties ]
Date of filing
Certificate	The [ party ] certifies that — each party has given discovery to, and permitted inspection by, each other party; all requests for answers to interrogatories have been answered or validly objected to (delete if inapplicable); each party has complied with all case management directions and orders made by the Court; the [ party ] does not require any other interlocutory orders to be made; the [ party ] has complied with the Rules of the Supreme Court 1971 Order 36A; the [ party ] has complied with the District Court Rules 2005 rule 36(1); the [ party ] has complied with the District Court Rules 2005 rule 45C; the [ party ] has complied with the District Court Rules 2005 rule 45D (delete if inapplicable).
Entry for trial	The [ party ] enters this matter for trial.
Has the requirement to attend a pre‑trial conference been dispensed with? ²
Unavailable dates	The parties are not available for a pre‑trial conference on these dates:
Date of pre‑trial conference / directions hearing / listing conference ³	Date:Time: Place: District Court Building, 500 Hay Street, Perth ¹
Information about the pre‑trial conference	All parties are required to attend the pre‑trial conference in person accompanied by their respective lawyers. Where a party is a body corporate it must attend by an agent who is authorised by the body corporate to conduct settlement negotiations and settle the case.At the pre‑trial conference, the parties must, in good faith, attempt to settle the case or, failing settlement, to resolve as many of the issues between them as possible and to identify the issues to be tried. If the action is settled before the pre‑trial conference please immediately notify the Court that this has occurred.
Contact details of party or lawyer	Name
	Firm
	Address
	Phone	Fax
	Email
	Reference
Signature of person making this certification	Name of person making this certification			Date of signing:

In the WA District Court, most entries for trial are filed by solicitors representing plaintiffs. It is worth noting the specific things that the plaintiff’s solicitors must certify to in this new Form:

each party has given discovery to, and permitted inspection by, each other party;
all requests for answers to interrogatories have been answered or validly objected to (delete if inapplicable);
each party has complied with all case management directions and orders made by the Court;
the [ party ] does not require any other interlocutory orders to be made;
the [ party ] has complied with the Rules of the Supreme Court 1971 Order 36A;
the [ party ] has complied with the District Court Rules 2005 rule 36(1);
the [ party ] has complied with the District Court Rules 2005 rule 45C;
the [ party ] has complied with the District Court Rules 2005 rule 45D (delete if inapplicable).

Rule 36 (1) of the DCR refers to costs notifications to the plaintiff.

Rule 45C is the requirement to file particulars of damages. I highlight this requirement as it is clearly a condition precedent to entry for trial. The new Form 1 uses the past tense when referring to Rule 45C. This means that the plaintiff’s solicitors must certify that they have provided particulars of damages to the defendant before entry for trial. It is our suggestion that defendant lawyers remind plaintiff lawyers that they must certify that they have provided particulars of damages before entry for trial.

Rule 45D is similar, in that it makes the same requirements of plaintiff’s lawyers as rule 45C, but with respect to technical reports in matters involving building or construction disputes.

For lawyers, it will be necessary to change filing procedures for the new Form 1 and note that it will now be necessary to serve the opponent with the listing notice of the pre-trial conference as it appears that the Court will no longer do so.

Disclaimer

Graeme Richards	Partner	David McVilly	Partner
David Burton	Partner	Justin Dyson	Partner
Alex Freeman	Partner	Josephine Courtney	Partner
Tony Basile	Partner	Kathy Melville	Partner
Hugh O’Sullivan	Partner
Trevor Darge	Partner
Byron Winburn-Clarke	Partner

District Court of Western Australia Held at Perth ¹		Action No:
		Memorandum of appearance
Parties	Plaintiff Defendant
Enter an appearance for the Defendant/Third party/ delete inapplicable or add further party title
Date of filing
Disclosure pursuant to RSC Order 9A
Identity of any person who is an interested non‑party (If applicable: see Rules of the Supreme Court 1971 Order 9A rule 2 and District Court Rules 2005 rule 22A(3))
Service and contact details
Geographical address of party(Must be provided unless otherwise ordered by the Court: see Rules of the Supreme Court 1971 Order 71A rule 2 and District Court Rules 2005 rule 22C)
Name of lawyer(If one has been appointed)
Postal address for service of documents(Must be provided)
Email address(Optional — if provided, may be used for service of documents)
Fax number(Optional — if provided, may be used for service of documents)
Telephone number
Reference
Signature of party or lawyer	Party/lawyer		Date of signing: