A Party May Apply…

On 21 June 2022, the Honourable Chief Justice caused to be published Supreme Court Practice Direction 12 of 2022 – Applications (the Practice Direction). 

The Practice Direction “applies to all applications made in the Trial Division of the Court, including bail applications”, and repeals six earlier Practice Directions pertaining to the same subject matter (Practice Directions 14 of 1999, 24 of 1999, 2 of 2001, 7 of 2011, 6 of 2004 and 3 of 2008).

Numerous requirements – some of them novel – are imposed by the Practice Direction in relation to the hearing of applications by the Court.  Most notably:

• Material to be read on an application is to be filed with it, or – if that should not be possible – “at least”[1] two business days before the return date of the application.[2]  Material which cannot be filed two business days clear of the hearing of the application is not to be filed in the Registry and should instead be filed by leave at the hearing of the application.[3]  Any material which is to be filed by leave “should be given to the other parties to the application as early as is practicable”.[4]

• Where a barrister is briefed at the time the relevant application is filed, the estimate given therein of the time required for hearing of the application (and required by r 463 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)) must be that of the barrister.[5]

• The estimate of time required for hearing set out in the application “must be made responsibly and allow time for the Judge to read the material during the hearing, hear submissions from all parties to the application, and (if likely) deliver ex tempore reasons” (emphasis added).[6] 

• Outlines of argument are required in relation to all applications.  Two hard copies of the relevant outline of argument must be provided to the Court; one copy is to be filed (either before hearing of the application, or by leave at the hearing) and the other is a working copy for the presiding Judge.  If the practitioner wishes to file a copy of the relevant outline of argument prior to hearing, it must be filed in accordance with the Practice Direction’s requirements for the filing of material (that is, the outline must be filed two business days clear of the date of hearing of the application).[7]

• Where the relevant application pertains to a ‘complex matter’, “practitioners should email their outlines of argument to the associate to the senior Judge sitting in Applications the day before the return date of an application.”  The email by which the outline of argument is delivered to the senior Judge must be copied to all other parties to the application.  Critically – and for reasons which shall be discussed further below – the Practice Direction states “[t]his is not a process of exchange: each party is to act independently.”[8]

• Where the Practice Direction’s requirements vis a vis early delivery (and exchange) of outlines of argument in a ‘complex matter’ obtain, the parties are not relieved of the requirement to file (whether in the Registry, two business days prior to the date of hearing of the application, or by leave at the hearing) a hard copy of the relevant outline, and to provide a further working copy for the presiding Judge, at the hearing.[9]

Significantly, the Practice Direction does not define a ‘complex matter’.  Certain applications will be – in all but the most unusual of circumstances – self-evidently complex (for example, an application for summary judgment); other applications will plainly not be complex (for example, an application for orders compelling disclosure, in circumstances where disclosure has not been completed at all by the respondent to the application).  It is the applications falling in the grey area between those two extremes which appear ripe for discord between the parties, and for practitioners to find themselves on the receiving end of the opprobrium of the Court, if the Court should form the view – contrary to the opinion of a party (or the parties) – that the matter is a ‘complex matter’ warranting early delivery (and exchange) of outlines of argument to the senior Judge.  

Indeed, the Practice Direction effectively provides that it is no excuse for a party to have not complied with the additional requirements pertaining to a ‘complex matter’ simply because another party to the proceeding was of the view that the application was not a ‘complex matter’.[10]

Barristers would be well-advised to engage in an early exchange with opposing Counsel to set out the Barrister’s view as to whether the application is a ‘complex matter’, and to seek opposing Counsel’s view of same.  Where the barristers involved in the application agree that the application pertains to a ‘complex matter’, they ought, of course, comply with the additional requirements imposed by the Practice Direction in relation to applications of that kind.  Where the barristers involved are unable to reach agreement as to that issue, the prudent approach would seem to be for all parties to proceed on the basis that the application is a complex one, and to comply with the additional requirements imposed by the Practice Direction. 

Notwithstanding that the requirement imposed by the Practice Direction that the estimate of hearing time set out in the application be that of the barrister appearing applies only where the barrister is briefed at the time the application is filed, one ought to be cognisant of the obligation imposed by r 463(3) of the UCPR to promptly advise the registrar of any change in the estimated duration of hearing time for an application.  That obligation plainly arises in circumstances where a barrister is briefed for the applicant after the relevant application is filed and forms the view that the estimate of hearing time set out in the application is inadequate or excessive.

The Practice Direction also imposes certain requirements in relation to the:

• making of consent orders, before the return date of the application;

• conduct of the callover in the applications list;

• form and content of outlines of argument (notably, the page limit for outlines of argument has been increased from four to six pages);

• provision of copies of authorities, legislation, affidavits and other key documents to the Court (including, where necessary or desirable, working copies for the presiding Judge); and

• provision of draft orders to the Court.

The Practice Direction represents a consolidation and simplification of the earlier Practice Directions pertaining to applications made in the Trial Division of the Court. 

The novel requirements introduced by the Practice Direction are plainly intended to require parties to an application to engage in the timely provision of material and outlines of argument to the Court, and the timely exchange of same with the other party or parties to the application.  

The Practice Direction is essential reading for all who practice in the Supreme Court’s applications jurisdiction; it may be accessed here.

[1] By its use of the words “at least” in this context, the Practice Direction should be read to impose a requirement that that material be filed two business days clear of the date of hearing of the application.  Although it does not strictly apply to interpretation of a Practice Direction, as much is clear on the basis of s 38(1)(a) of the Acts Interpretation Act 1954 (Qld).

[2] Practice Direction, paragraph 1.

[3] Practice Direction, paragraph 2.

[4] Practice Direction, paragraph 3.

[5] Practice Direction, paragraph 5.

[6] Practice Direction, paragraph 5.

[7] Practice Direction, paragraph 17.

[8] Practice Direction, paragraph 20.

[9] Practice Direction, paragraph 21.

[10] “This is not a process of exchange: each party is to act independently”: Practice Direction, paragraph 20.