Background

10.1 The object of such procedures is to reduce the cost of proceedings, to reduce delay in cases coming on for trial, and to facilitate early settlement of disputed claims.

10.2 The Court Bill provides that where proceedings are pending in the court, the Chief Judge may direct the Registrar to arrange a conference between the parties to the proceedings or their representatives, to be presided over by a commissioner or registrar as the Chief Judge thinks fit. The procedure for arranging or conducting a pre-hearing conference is to be in accordance with the rules.¹ The rule-making power includes a specific power to make rules in relation to pre-hearing conferences ^.2

10.3 In recent times there have been a number of developments which indicate that much may be gained by pre-trial procedures and, in particular, pre-hearing conferences. In the Supreme Court, particularly in the Commercial List of the Common Law Division, directions hearings, including hearings at which the parties are required to be present, have shortened by a considerable margin the time previously taken to prepare cases for trial. They have been effective to narrow the issues, or simplify the reception of evidence, in complicated litigation. In the District Court, pre-trial hearings have substantially increased the settlement rate before trial, particularly in relation to country sittings. In Western Australia, pre-hearing conferences in that State’s workers’ compensation jurisdiction have been extremely successful in reducing delay and facilitating early settlement.³ It is anticipated that Master Greenwood’s forthcoming report on pre-trial procedures in the United States may encourage the further use of such procedures in this State.

Submissions

10.4 The Legal Panel for the Labor Council of New South Wales said in its submission⁴ that it welcomed any attempt to break the established pattern whereby, it was asserted, employers and their insurers were willing to contemplate resolving disputes only at the door of the court. It was hoped that pre-hearing conferences and other measures such as conciliation and arbitration might serve a useful purpose in this regard, although the panel was not optimistic that this would necessarily occur.

10.5 Mr. Goss, Registrar of the Commission said in his submission⁵ that the provisions relating to pre-hearing conferences would require legislative amplification in the light of the expected report of Master Greenwood.

10.6 Although not dealt with in written submissions, the judges of the Commission in conferences with us indicated that they would be prepared to accept the idea of registrars conducting pre-hearing conferences on a trial basis. They say that additional resources and funding would be necessary if a pre-hearing procedure was added to the existing listing procedures which they insist must be presided over by a judge.

Issues Involved

10.7 We think that the question of pre-hearing conferences gives rise to some important issues involving at least one question of policy. The material we have seen and the submissions we have received indicate that one of the purposes of a pre-hearing conference is to facilitate early settlement. This would necessarily include the opportunity of settlement by way of a lump sum redemption. In the course of our deliberations under the accident compensation reference we have given consideration to whether there should continue to be a right to redeem periodic payments of compensation. One of the criticisms of redemption in principle is that a person entitled to periodic payments of compensation may be prevailed upon to compromise his or her rights in return for the certainty of a settlement. If negotiations are to be encouraged or even pressed upon the parties at an early stage there would be the added incentive to compromise rather than wait out the period of time before the case came to court. Insofar as the idea of pre-hearing conferences implies encouragement to settle claims by way of redemption, it raises an important policy question which is beyond the scope of this interim report. Accordingly, we make no recommendation in this respect.

10.8 However, we see scope for pre-hearing conferences as a means of encouraging speedier preparation for trial, as a means of clarifying the issues in the case, and as a means of facilitating a fair trial by directions as to interlocutory matters and as to the manner in which the trial itself is to be conducted

10.9 We take the view that the provisions in the Court Bill in relation to pre-hearing conferences should be strengthened by deletion of the provision empowering the Chief Judge alone to direct, on a case by case basis, that a pre-hearing conference be arranged.⁶ We think it appropriate that the Rule Committee should be empowered to make rules applicable to all cases providing for pre-hearing conferences, and other pre-trial procedures for the purposes of:

• reducing delay in bringing cases on for trial;
• the early identification and clarification of issues; and
• the giving of all necessary directions in relation to interlocutory matters and the manner in which the trial should be conducted.

10.10 The rules need not necessarily make a pre-hearing conference mandatory in every case. Such procedures could, as is the case in Western Australia, be optional in the first instance. It might, however, be advantageous to add a provision allowing the court to direct a compulsory pre-hearing conference in any particular case, as is presently provided by the Bill at the instance of the Chief Judge alone.

10.11 We believe that the intended objectives would be more likely to be achieved if pre-hearing conferences were presided over by a judicial officer of the status of judge or commissioner (if there are to be commissioners) rather than by a registrar. This would, however, be a matter for the Rule Committee and we are not opposed to the idea of allowing registrars to exercise the function on a trial basis. It might therefore be wise to give registrars the power to preside over a pre-hearing conference, in case the trial was successful, or in case the function could be exercised by them in a limited class of cases.

10.12 Although of more general application than in relation to pre-hearing conferences, we think it important that the court have a power to dispense with the rules of evidence and to require admissions to be made in appropriate circumstances, as is the case in the Supreme Court and the District Court.⁷ In any provision for pre-hearing conferences, care should be taken to ensure that such powers are exercisable at that stage of the proceedings. This reinforces the view that pre-hearing conferences should be presided over by a qualified judicial officer.

Summary

10.13 Accordingly, we recommend that:

• the proposal for pre-hearing conferences should be generally implemented, although modified so as to be regulated pursuant to rules of the court and to not be dependent on order of the Chief Judge alone;
• pre-hearing conferences should, in general, be presided over by experienced judicial officers of the court, although there may be room for allocating some of the work to registrars on a trial basis; and
• there be provision expressly directed to allowing dispensation with technical rules of evidence, and permitting the court to require admissions in appropriate cases along the lines of section 82 of the Supreme Court Act, 1970.

FOOTNOTES

1. Court Bill, cl.31(1), (2).

2. Court Bill, cl.44(1)(d).

3. Schedule: Item 16.

4. Schedule: Item 22.

5. Schedule: Item 28.

6. Court Bill, cl.31(1).

7. Supreme Court Act, 1970, s.82; District Court Act, 1973, s.69.