Practice Note No.14

First Issue Date:
9 June 2004
Re-Issue Date:
1 February 2010


Re-issued pursuant to Section 185A of the Industrial Relations Act 1996 and Section 15 of the Civil Procedure Act 2005

Pre Hearing Directions for applications under section 106 of the Industrial Relations Act1996

1. The purpose of this Practice Note is to facilitate the resolution of section 106 matters before the Industrial Relations Commission of New South Wales, by ensuring that such proceedings are conducted before the Commission in an efficient and expeditious manner and that practitioners and others who appear before the Commission, do all they can to facilitate the just, quick and cost effective disposal of such proceedings.

2. This Practice Note has effect from the date of re-issue.

Conciliation under s109 - standard directions

3. The purpose of conciliation is to resolve the proceedings by agreement, without proceeding to a full hearing of the matter. Conciliation provides the parties with an opportunity to reach agreement about some or all of the issues in dispute. It is essential that the parties clearly identify the issues between them prior to the conciliation. The Court's rules and directions also seek to minimise costs incurred prior to conciliation.

4. The standard directions set out in Rule 13.4 of the Industrial Relations Commission Rules 2009 apply in respect of matters listed for conciliation.

Unsuccessful conciliation - pre-hearing standard directions

      (a) On the issue of a certificate of unsuccessful conciliation, the standard directions in paragraph 6 will apply, unless the Court makes alternative directions.

      (b) The directions in the usual case shall be made at the end of the conciliation by the Judge or Deputy President who has conducted the conciliation.

      (c) Any agreement to vary the standard directions may be dealt with at the conciliation, or later, but in any case shall be subject to approval by the Court.

      (d) After the conciliation, consent variations or contested variations to standard directions will usually be dealt with by the directions judge.

      (e) Consent variations may be dealt with in chambers. Applications for a listing for directions (for contested applications to vary directions or where the Court does not grant a consent application to vary) are to be made to the directions judge.

      (f) The Court is likely to issue alternative directions in proceedings where, having regard to all of the circumstances, including the amount of any claim and the cost of the proceedings, the standard directions are not appropriate.

6. The standard directions set out in Rule 13.7 of the Industrial Relations Commission Rules 2009 apply in respect of matters where a certificate of unsuccessful conciliation has issued.

7. The directions judge will fix a directions date in each matter. This is the date by which the Court expects that the above steps will have been completed. In the usual case, where the standard directions have been made, the date will usually be 12 to 13 weeks after the certificate of unsuccessful conciliation has been issued. An explanation for any failure to comply with directions must be given at the directions hearing, when the directions judge will issue further directions to ensure that the matter is expeditiously prepared for hearing.

8. The Court expects and requires that its orders will be observed. It is the obligation of all parties and their legal practitioners and agents, including parties not in default, to exercise vigilance in ensuring that the timetable is observed. Notwithstanding the obligation of a party in default to bring the matter to the Court's attention, a party not in default is also required to exercise the liberty to apply to bring any default to the attention of the Court, after giving the defaulting party reasonable notice of its default.

9. After these steps have been attended to, the applicant or the applicant's legal representative or agent must certify to the directions judge that the steps have been completed.

10. The matter will then generally be referred to a judge for hearing provided that the estimate of the likely court time necessary for the hearing of the proceedings, including addresses, is included in the certificate as having been provided by the legal representative or agent of the parties who is in the best position to make the assessment.

11. Where such steps have been taken in matters before the directions judge prior to the promulgation of this Practice Note, the applicant or the applicant's legal representative or agent must certify that the steps have been completed. The matter will then be referred to a judge for hearing, notwithstanding that some steps required under the previous standard directions or the directions made in the proceedings (but not under this Practice Note), have not been completed.

12. The further preparation of the matter for hearing will be at the sole direction of the trial judge, but the parties may anticipate that the trial judge will require that the parties give their attention to the following matters:
      (a) Whether further conciliation is a realistic option, having regard to the evidence filed after the first conciliation

      (b) Clarification of the issues calling for resolution in the proceedings. A list specifying such issues shall be filed and served at least 5 working days prior to the first day of the hearing.

      (c) Any revised or refined estimate as to the likely court time necessary for the hearing of the proceedings, including addresses, further to the estimate given in terms of paragraph 10 of this Practice Note. Any further estimate must be provided by the legal representative or agent of the parties who is in the best position to make such an assessment.

      (d) Those parts of the affidavit material which will not be pressed.

      (e) Those parts of the affidavit material to which objection will be taken, distinguishing objections as to form from objections as to substance.

      (f) Those deponents not required for cross examination.

      (g) Those matters about which agreement can be reached.

      (h) The availability of witnesses who are required to give evidence including the possibility that witnesses remote from the hearing may give evidence by video link and the practicalities of such an arrangement. There should also be discussions about the venue of the hearing or part of the hearing where a number of witnesses reside in an area remote from the location of the Court.

      (i) Whether the rule in Brown v Dunn should not apply, where the necessary contrary factual material is raised in the affidavit materials, subject to any order to the contrary.

13. As a general rule, parties may file additional affidavits to deal with any parts of affidavits filed to which objections as to form have been taken. A trial judge may permit oral evidence to be called at the hearing with respect to those parts of any affidavit material not pressed or struck out, because of an objection as to form.

14. Parties have liberty to apply generally on the giving of at least 24 hours notice to the other side of the application for relisting and the purpose of the application.
Boland J, President
1 February 2010