Judge Davis offered a helping hand to litigation practitioners in Built Pty Ltd v C & L Ceilings Pty Ltd  WADC 52 . In that case her Honour set out some guiding principles about when the District Court will order witness outlines to be exchanged before trial, in light of recent changes to the Supreme Court practice directions which came into effect in February 2019. The case is of great practical importance to lawyers and their clients who are going to trial, as it will significantly change how they prepare for trial, and the costs they incur.
Built is the first decision to consider the application of recent amendments to practice direction 4.5 of the Supreme Court of WA Consolidated Practice Directions (CPD 4.5) to case management in the District Court.
Prior to the implementation of CPD 4.5, parties to actions in the Supreme Court of WA would exchange detailed written witness statements or affidavits, which stood as a witness’ evidence in chief at trial. This was meant to shorten trials, and reduce the time that witnesses would have to spend giving evidence.
In practice, however, the preparation of lengthy witness statements drafted by legal practitioners detracted from their intended purpose – to promote the efficient and just determination of civil disputes. The content of witness statements also gave rise to many an interlocutory quibble regarding form and admissibility.
In that regard, in the Notice to Practitioners accompanying the amendments to CPD 4.5, Chief Justice Quinlan commented that:
“the preparation of witness statements and the process of objections can add significantly to the cost of preparation for trial, often without significant benefit to the just determination of the matter. This is particularly so where witness statements do not reflect the witnesses own words or where they consist largely of the recitation of the documentary record. The inclusion of extraneous material in witness statements also has the potential to lead to unnecessary and lengthy cross-examination”.
Judge Davis’ decision concerned an interlocutory application brought by the Defendant to a contractual dispute under a construction contract between a principal and sub-contractor. The Defendant sought an order, which was opposed by the Plaintiff, for the parties to exchange witness outlines prior to trial in accordance with CPD 4.5. A key issue in dispute in the substantive action regarded what was said between the parties at a particular meeting upon the execution of a deed poll.
The Defendant wanted witness outlines exchanged before trial for three main reasons, namely that they would:
- delineate with clarity the case the Defendant is required to meet;
- prevent the case traversing irrelevant matters; and
- facilitate the prospects of early settlement.
It was also submitted on behalf of the Defendant that the exchange of witness outlines will provide the most expeditious and cost efficient method of obtaining a fair and just determination of the issues in dispute.
The Plaintiff opposed the order sought on three grounds:
- The Court is best placed to assess the evidence of witnesses if it is given orally in the traditional way.
- The substance of the evidence of the Plaintiff’s primary witness was clear from the pleadings.
- The ordering of witness outlines will not reduce costs as submitted by the Defendant but rather only serve to increase the expense of the action.
Ultimately, Judge Davis’ dismissed the Defendant’s application. Her Honour was satisfied that the issues in dispute had been adequately identified on the pleadings so as to prevent the conduct of the trial straying into irrelevant territory. The Defendant’s submission regarding the facilitation of early settlement was readily dismissed with her Honour noting that it was an expectation “the parties continue to explore any way of settling this matter between now and trial, whether or not witness outlines are ordered”.
Judge Davis was not satisfied that the ordering of witness outlines would facilitate the “efficient, economic and expeditious determination” of the matters in dispute any more than if oral evidence were to be given at trial.
Lawyers practising within the District Court’s civil jurisdiction can glean from Judge Davis’ reasons in Built that, notwithstanding the implementation of the recent amendments to CPD 4.5, the exchange of witness outlines are only likely to be ordered by the Court when faced with complicated factual disputation.
As with all case management matters, the primary consideration for practitioners is whether exchanging witness outlines “will facilitate the efficient, economic and expeditious conduct of the case”.
The exchange of witness outlines will only be ordered in civil disputes before the District Court where it will assist achieving the overarching case management objectives of efficiency, just determination of litigation, and proportionality of costs.
The amendments to CPD 4.5 and the reasoning of Davis DCJ in Built serve as a timely reminder to advocates practising in the civil sphere that they must continue their reversion back to mastering the dark art of examination-in-chief.
Ultimately, where matters of credibility or contentious recollection are involved, case management objectives are largely best served when the bench hears it straight from the proverbial horse’s mouth. This might mean that in many cases, lawyers and litigants will have less paperwork to do before trial, but will be spending more time telling their story in the stand.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.