The purpose of this Practice Note is to provide guidance on the operation of the Employment and Industrial List, a case management list within the Common Law Division of the Court. This Practice Note (the second revision) commences on 19 July 2021 and applies to all proceedings in the List whenever commenced. It replaces the previous version which commenced on 1 October 2018.
1 INTRODUCTION
1.1 The Chief Justice has authorised the issue of the following Practice Note.
1.2 The purpose of this Practice Note is to provide guidance on the operation of the Employment and Industrial List, a case management list within the Common Law Division of the Court.
1.3 The purpose of the List is to provide for the just and efficient determination of eligible proceedings, through early identification of the substantial questions in controversy and flexible adoption of appropriate procedures. The List is managed by the Judge in Charge, assisted by an Associate Judge
2 DEFINITIONS
2.1 In this Practice Note:
Associate means the associate to the Judge or Associate Judge;
Associate Judge means the Associate Judge assisting the Judge;
Judge means the Judge in Charge of the List;
List means the Employment and Industrial List
List directions day means the regular day on which the Court sits to give directions in the List as published on the List page on the Court's website;.
3 COMMENCEMENT
3.1 This Practice Note was issued and commenced on 19 July 2021, as revised, and will apply to all proceedings in the List whenever commenced.
4 PROCEEDINGS SUITABLE FOR INCLUSION IN THE LIST
4.1 Proceedings that have a significant connection with an employment or labour relationship should be initiated in the List. Such proceedings include, but are not limited to:
a) claims for relief based on an alleged breach of an employment or other labour contract;
b) disputes concerning whether a worker is an employee or independent contractor;
c) claims alleging breaches of equitable and/or fiduciary obligations arising from an employment or other labour relationship, including breach of confidence claims1;
d) claims alleging misleading and deceptive conduct in relation to employment;
e) claims in connection with an employment relationship alleging interference with contractual relations, inducing breach of contract and/or conspiracy to injure;
f) industrial tort, secondary boycott and related contempt proceedings;
g) appeals and applications in the nature of judicial review from:
i. the Industrial Division of the Magistrates' Court save for decisions made in the exercise of jurisdiction under the Fair Work Act 2009 (Cth);
ii. the Victorian Civil and Administrative Tribunal involving allegations by an employee of discrimination or harassment in the workplace;
iii. decisions of tribunals in relation to employment;
h) claims in connection with workplace disciplinary proceedings.2
4.2 Where the cause of action arose in regional Victoria, or where the majority of witnesses or parties reside in regional Victoria, proceedings of the nature set out in paragraph 4.1 should be initiated in the Civil Circuit List.
4.3 For the avoidance of doubt:
a) proceedings in which the principal claim relates to personal injuries sustained in the course of employment should be initiated in the Personal Injuries List or Dust Diseases List as appropriate; and
b) proceedings of the nature described in paragraph 4.1(g) should be initiated in the Employment and Industrial List and not in the Judicial Review and Appeals List.
5 PROCEDURE FOR ENTRY INTO THE LIST
5.1 Proceedings should be initiated in the List by endorsing the heading of the originating process "Employment and Industrial List". The heading of all subsequent documents filed in the proceeding should also be endorsed "Employment and Industrial List".
5.2 Parties may apply to the Judge (by contacting the Associate) if they wish to have a proceeding included in the List, notwithstanding that it is not a proceeding of a type referred to in paragraph 4.1.
5.3 If at any time after the initiation of a proceeding it appears to the Court that it is appropriate to have the proceeding managed in the List, the proceeding may be transferred into the List on the Court's own motion. Without limiting the foregoing, this may occur where, by virtue of an amended claim, counter-claim or third party claim, an eligible employment or industrial claim is introduced into the proceeding.
5.4 Conversely, a proceeding initiated in the List may be transferred out of the List on the Court's own motion if it appears to the Court that it is appropriate to have the proceeding managed in a different List.
5.5 No additional fees will be payable for the inclusion of a proceeding in the List.
6 FIRST DIRECTIONS HEARING
6.1 The Associate Judge will give directions for the management of a proceeding in the List at a first directions hearing on a List directions day. The Court will generally notify the parties of the date and time of the first directions hearing within 14 days of the filing of the first defence.
6.2 At the first directions hearing, the Court expects that each party's representative will be properly briefed and familiar with the proceeding, and will be able to deal fully with all issues that might arise. This expectation applies equally to self-represented litigants. The practitioner with conduct of the file (or counsel, if retained to appear in the trial of the proceeding) is strongly encouraged to appear at the first directions hearing.
6.3 At the first directions hearing, all parties are required to attend and are expected to have considered:
a) the nature of the claim, and the key legal and factual issues which may arise;
b) whether the parties have given each other sufficient information to understand the principal questions in issue;
c) their compliance with section 26 of the Civil Procedure Act 2010;
d) the likely duration and the mode of the trial;
e) the utility of early mediation or other form of alternative dispute resolution;
f) joinder of any further parties;
g) whether apportionment is sought against any party or other person;
h) the filing and service of any further pleadings;
i) the provision of proper particulars;
j) the scope of discovery, service of lists of documents, and the provision of copy documents;
k) whether expert evidence is appropriate for the resolution of the issues in dispute and, if so, the nature and scope of any likely expert evidence;
l) whether experts have been or are expected to be retained for the purposes of the proceeding, and whether a common expert might be jointly retained;
m) the timing for the filing and service of any evidence or affidavits; and
n) whether an order should be made for the separate trial of any question.
7 INTERLOCUTORY APPLICATIONS
7.1 All interlocutory applications are to be made by summons, which will generally be returnable before the Associate Judge on a List directions day.
7.2 Applications with an estimate of more than two hours will not be dealt with on a List directions day before the Associate Judge and will be listed as a special fixture on a date convenient to the Court.
7.3 Prior to filing a summons, a party seeking to arrange the hearing of an application must contact the Court (Registry Applications Coordinator) to obtain a return date by completing the “Interlocutory Applications Information Form” available on the Court website and forwarding via email to rzcyblzragnaqvaqhfgevny@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@lairtsudnidnatnemyolpme . The applicant will be advised by email of the return date. The summons should be filed within 48 hours of this advice or the return date may not be guaranteed.
7.4 The practitioner for the applicant must notify the Court immediately upon becoming aware that the hearing is no longer required, the application is no longer contested or has become a consent matter, or the hearing estimate has otherwise been revised.
7.5 In addition to the usual requirements for filing, a time estimate and the names of persons appearing or observing the hearing should be emailed to the Associate to the Associate Judge by 1.00pm two days prior to the hearing.
7.6 Any applications for an interlocutory injunction or contempt should be made by summons, returnable before the Judge or the Practice Court (Common Law), depending on their urgency. Parties are requested to contact the Practice Court Coordinator regarding these applications in the first instance.
8 FINAL DIRECTIONS HEARING
8.1 The Trial Judge or Associate Judge will convene a final directions hearing, to be held shortly before the date fixed for trial.
8.2 At a final directions hearing, the practitioner with conduct, or counsel if retained to appear in the trial of the proceeding, should be in a position to deal with the following matters:
a) whether the trial is ready to proceed on the listed date;
b) whether any applicable timetable is still appropriate;
c) whether witnesses will be called and any circumstances of which the Court should be aware or of any special needs, such as hearing impairment;
d) whether an interpreter is required;
e) whether the trial could be conducted as an in-person or remote hearing and the reasons why;
f) whether the estimates previously provided with respect to the length of the trial remain accurate; and
g) whether a mediation or a further mediation would be likely to achieve a settlement of some or all of the questions in issue.
9 TRANSCRIPT
9.1 Practice Note SC Gen 7 is applicable to the requirements for transcript in relation to proceedings in the List.
9.2 For the purposes of Practice Note SC Gen 7, unless in a particular case parties are advised otherwise:
a) 'Real-Time' transcript is not required for any proceeding in the List;
b) 'Running' transcript (as distinct from 'Real-Time' transcript and from 'Deferred' transcript) is required for all trials in the List; and
c) transcript is not required for directions hearings.
10 COURT ORDERS
10.1 Solicitors for the plaintiff (or for the applicant in the case of interlocutory applications) are encouraged to deliver proposed consent orders to all other parties in advance of all hearings after the first directions hearing. The parties should email minutes of consent to rzcyblzragnaqvaqhfgevny@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@lairtsudnidnatnemyolpme copying beqref@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@sredro , in both Word and signed PDF format, by 4.00pm two days prior to the hearing. Proposed consent orders may not be made on the papers when sent after this time.
10.2 The Court will make orders on the papers where appropriate. However, notwithstanding that the parties may have submitted proposed consent orders, the Court may decide not to make the proposed orders and may require the attendance of practitioners at a hearing. Parties are required to appear at all scheduled hearings unless otherwise advised by the Associate.
10.3 Parties should notify the Court as soon as it becomes apparent that there are difficulties in complying with orders.
11 USE OF TECHNOLOGY
11.1 The provisions of Practice Note SC Gen 5 "Guidelines for the Use of Technology" apply to proceedings in the List.
11.2 For the purposes of paragraph 9.11 of that Practice Note, documentary evidence in excess of 1500 pages is to be considered a large amount of documentary evidence.
12 COMMUNICATIONS WITH THE COURT
12.1 At all stages of the proceeding, communications with the Court in relation to matters in the List should be by email to rzcyblzragnaqvaqhfgevny@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@lairtsudnidnatnemyolpme with a copy to all other parties in the proceeding, and should be confined to uncontroversial matters in accordance with paragraphs 6.3 and 6.5 of Practice Note SC Gen 4 of 2017. Additional contact details for all associates are on the Court website.
12.2 Parties are reminded that pursuant to rule 27.03(11)(b) of the Supreme Court (General Civil Procedure) Rules 2015, all court documents must include the name and email address of an individual to whom reference can be made in respect of the proceeding.
13 FURTHER INFORMATION
13.1 The Court's website (www.supremecourt.vic.gov.au) includes a page dedicated to the List with up to date information about the operation of the List including:
a) judicial officers managing the List;
b) links to this Practice Note in Word and PDF formats;
c) proforma standard directions (including directions for matters in the nature of judicial review or appeals);
d) interlocutory applications information form referred to in para 7.3 (for obtaining a hearing date and time);
e) dates for List directions days.
AMENDMENT HISTORY
30 January 2017: This Practice Note was issued on 30 January 2017 and replaced Practice Note No 2 of 2016.
1 October 2018: Amendments to paragraphs 2, 3, 7, 9, 10, 12 and 13.
19 July 2021: Amendments to paragraphs 2.1, 3.1, 4.1, 7.2, 7.3, 7.5, 8.1, 8.2, 9.2 and 12.1.
VIVIENNE MACGILLIVRAY
Executive Associate to the Chief Justice
19 July 2021
[1] Where in addition to those matters there is an allegation of a breach of ss 180-183 Corporations Act 2010 (Cth), the matter is suitable for inclusion in the List.
[2] Note that appeals and judicial review applications concerning occupational registrations/deregistrations should be initiated in the Judicial Review & Appeals List.