The Supreme Court has recently issued the Institutional Liability List Case Management and Listing Update, with new case management procedures to better manage the very large number of new proceedings now being filed in this List.
Historic institutional child sexual abuse litigation has surged in the past 12 months and is complex and demanding work for legal practitioners.
Legislation and case law has, and continues, to evolve rapidly making it crucial that practitioners remain abreast of the continually changing landscape.
It is a specialist area of law, and if your practice is not experienced in the area, we recommend the referral of clients to firms who practice regularly in the field. Do not risk a potential claim by dabbling in an area of practice with which you are not familiar or don’t have the resources to manage in the manner required.
For those who are practising in this area, the Supreme Court has recently issued a new Institutional Liability List Case Management and Listing Update, with new case management procedures to better manage the very large number of new proceedings now being filed in this List.
The Court is highlighting the need for litigation in this area to be conducted with maximum efficiency, in the interests of the proper administration of justice.
To that end, new case management procedures introduced for historic institutional child abuse claims:
- are targeting a trial within 14-16 months of an appearance first being filed;
- place more onus on practitioners to keep proceedings moving in accordance with a standard interlocutory timetable;
- require applications to set aside prior judgments/deeds to be issued as early as possible, once it’s known the issue is contested;
- require parties and counsel to confer and narrow issues prior to the hearing of any interlocutory application;
- expect parties to be ready to attend a Court-ordered mediation within 12 months of service of the writ;
- require all parties to exchange medical/expert reports and particulars of special damages 2 months prior to mediation;
- there will be limited scope for parties to seek leave to serve new expert evidence after a mediation has occurred, but delaying preparation of expert material until after a mediation will not generally be considered acceptable unless it is in response to a new development which couldn’t have been anticipated.
These modified procedures require practitioners to prioritise early case preparation. They represent good practice in any civil litigation but given the special vulnerability of clients bringing compensation claims for historic institutional child sexual abuse, they are particularly important in this List.
The Court has powers under the Civil Procedure Act to visit cost or other consequences upon a defaulting client or legal practitioner and may be expected to exercise them in appropriate circumstances.
Risk Management Tips
LPLC recommends all firms and practitioners working in this field review their case management practices to ensure compliance with the new procedures. In particular:
- ensure clients are made aware that Court deadlines need to be observed and their case may be prejudiced by any non-compliance.
- seek documents relevant to the claim as soon as possible (e.g. institutional records, school records, employment records, treating practitioners/hospital notes and reports, medico-legal reports, vocational reports, Centrelink, NDIS, ATO, Department of Justice, police)
- create checklists to ensure receipt of key documents are not missed or delayed.
- identify required expert evidence early and exchange it in a timely manner.
- brief counsel early to ensure the matter is expertly prepared with an eye to the adequacy of pleadings and particulars and the evidence required to best advance the client’s claim or defence.
