Case Appraisal QLD Courts PDF

**Case Appraisal** ------------------ An ADR process available AFTER the matter has settled Is available in all QLD courts for all civil disputes Involves a 3^rd^ party making a non-binding decision on all the legal material before them. The decision is only binding if all the parties consent to...

**Case Appraisal** ------------------ An ADR process available AFTER the matter has settled Is available in all QLD courts for all civil disputes Involves a 3^rd^ party making a non-binding decision on all the legal material before them. The decision is only binding if all the parties consent to it. Buy-in is not consensual but opting into the decision is UCPRs set out process for referral to case appraiser - court order refers the mater to case appraisal and - either appoints a specific case appraiser or provides for the parties to select the expert - sets out the dispute referred and provides information about the pleadings, statements, other material before the court (no room for the parties to wriggle) - confirms the period within which the case appraisal must take place - identifies the costs/likely costs and how and when they are to be paid (UCPR 334) Matters can be referred to case appraisal even where mediation has been attempted. It introduces an element of private judging and hence introduces new costs. Costs considerations are relevant in determining which decisions go to case appraisal. Case appraiser has **full control** over the process: Section 45(1)(b) Civil Proceedings Act 2011: *case appraiser may adopt **any procedure** that will, in the case appraiser's opination, enable a sound opinion of the likely outcome of the dispute to be reached* Case appraiser: - can ask ANYONE for information (associated costs to be agreed by parties or subject of court order) (UCPR 337) - has same authority as the court making the referral but can only make a decision that the court could make in the case (and cannot punish for contempt) (UCPR 335) - has same power to make a costs order as the court (UCPR 340) Parties have same appearance rights as before the court A person (witness) can be subpoenaed to attend a case appraisal -- by order of the court (s.46(2) Civil Proceedings Act 2011) but cannot be compelled to answer a question/produce a document that they would not be required to do before a court Case Appraiser has authority of the Court in the event of non-compliance. They do not have any additional powers beyond the jurisdiction of the Court. They cannot punish for contempt. Decision is reduced to writing and provided to the Court -- need not give reasons and can cease process at any time (UCPR 338). No need to give reasons of why they ceased the process When a decision is made the case appraiser must place the decision in a sealed container marked *"not to be opened without an order of the court"* and file the container with the court. Can only be opened pursuant to a court order (because parties agree to accept the decision or following a trial (UCPR 342) Decision enforceable only if parties apply for order to give effect to decision: Court can make any order it considers appropriate (s51(3) Civil Proceedings Act). Parties are taken to accept the decision if objection is NOT taken (UCPR 343) but still need to secure an order Same power to make a costs order as the court (UCPR 340) Trial remains an option for parties who are not content with the decision -- costs at risk if judge's decision is less favourable than case appraiser's Technical expertise of case appraiser is crucial Legalistic and strong evidentiary focus When might case appraisal be preferable to a trial? Also available in - Land Court - National Sports Tribunal ### Land Court Only applied in relation to compensation and conduct agreements (CCA) for land access under the Mineral and Energy Resources (Common Provisions) Act 2014. A convenor is appointed from a panel of experts -- legal, valuation, resources, planning experience UCPR applies if Land Court Rules inadequate Division 4 Alternative dispute resolution 15 Land Court ADR panel \(3) The court may refer either of the following matters to alternative dispute resolution by a convenor--- \(a) a matter that is not before the court but may be brought before the court; \(b) a matter that is before the court and was started other than under part 2 of the Act.... \(5) In this rule--- alternative dispute resolution, of a matter, means \(b) for a matter mentioned in subrule (3)(b)---a relevant ADR process. relevant ADR process see section 27C(5) of the Act. \[refers back to Civil Proceedings Act but excludes case appraisal\] Really strong pre-emptive provision. Cannot proceed to CA if already in the Court ### National Sports Tribunal Non-binding **oral** opinion based on the evidence and statement of the parties -- tribunal member can then assist parties to negotiate an agreement. Can request a written decision but cannot be used in any proceedings before the tribunal. Most suitable for disputes that are not complex, contained, have no witnesses and no lengthy evidence No witnesses can be called Decision can be about facts and/or procedure for future conduct of matter Tricky for the CA as they have to facilitate discussion with their own decision in their mind as well. This process is seen as better for complex disputes where there are no witnesses etc. The CA can make a decision about outcome but also just about steps that would lead up to an outcome. ### Key Features of Case Appraisal Third party decision. Requires consent of all parties to finalise on basis of that decision. Process controlled by appraiser Private -- happens behind closed doors Individualistic Timely and cost-effective outcome is possible. ### When and why is case appraisal preferable to a trial Could be a cheaper 1^st^ resort and then can continue to trial afterwards if necessary More private than a trial. ### FCFCOA Judicial settlement conferences Convened by judge or other judicial officer -- not the trial judge Purpose is to finalise matter including by challenging and evaluating the expectation of parties prior to a trial -- format and conduct is up to the Judge Gives parties exposure to court room and judge No evidence of documents prepared for the conference, concessions or offers made are admissible in court proceedings (other than the limited circumstances provided by s.131 of the Evidence Act (Cth)) Judge will destroy/return to the parties any documents prepared for the purpose of the conference Held in a Court room (usually). This gives the parties exposure Potential separate discussions with parties Judge expresses a view and explores evidentiary and other case weaknesses Consent orders made at conclusion where agreement is reached