Having experience in both New South Wales and Queensland, I am often asked by Queensland practitioners about the curious ways of the New South Wales system for family provision claims. While the concept of the claims is similar and to some degree the process, the management of the process is vastly different.
The Queensland Practice Direction No. 8 of 2001 and New South Wales Practice Note No. SC EQ 7 both outline the process, documentation required and the need for the parties to agree upon a court timetable. There is also a requirement to participate in an Alternate Dispute Resolution process.
The question I am always asked is, do I prefer the Queensland way or the New South Wales way. My answer is the New South Wales way. The reason being, it’s efficient.
The Queensland practice direction seems to be a little like the ‘keep left unless overtaking’ signs in Queensland. People know they should keep left, but don’t. Same with the practice direction for family provision applications, practitioners know they should comply with it, but sometimes they don’t. If you don’t, in Queensland you won’t have a List Judge at a directions hearing lecturing you about the need to comply with the practice note. So what does it matter if you are bit slack complying with it?
The stand out difference for me is a Judge managing the list. It ensures the parties involved in a claim have an efficient court timetable and the matter progresses with minimal or no delays.
Some other interesting points on the New South Wales system.
When the plaintiff files their Summons to commence proceedings, the Registry sets the date for the first directions hearing. The date set is usually around 2-4 weeks from the date of filing.
An Affidavit setting out an estimate of the plaintiff’s costs and disbursements, up to and including mediation is filed. A similar affidavit is filed and served in relation to the administrator’s costs prior to the second directions hearing. This gives the List Judge the opportunity to address the issue costs if necessary. The Court can make an order capping costs where the net estate is less than $500,000.00.
The first directions hearing:
- It is expected the plaintiff has complied with the requirements of filing and serving all documentation detailed in the practice note. If this is not done, the plaintiff is usually given a very short time frame to do so.
- A court timetable also needs to be agreed upon. If the parties have not agreed to a timetable, the List Judge decides on the timetable dates for you.
The second directions hearing:
- If there have been issues complying with the court timetable, these are raised and the List Judge will deal those. I recommend doing whatever it takes to comply!
- The matter is set down for mediation.
- A directions hearing date is set following mediation.
Mediation – Court annexed or private.
- Court annexed mediation is a good option for matters where there are no complex legal issues to be resolved. A Registrar or other officer of the court is the mediator. There are no mediation fees charged and it is a half day mediation.
- If the matter resolves at Court annexed mediation, the parties agree to the terms of the consent orders and the Registrar makes the orders immediately and vacates the directions hearing date.
- Private mediation may be necessary where an estate is particularly large and/or there are complex legal issues to be resolved. There are mediation fees involved and often a whole day is required to be set aside for the mediation.
- If the matter resolves at a private mediation, the parties agree to the terms of the consent orders and those are either made by communicating with His Honour’s chambers or at the directions hearing.
I am a big fan of efficiency. Not only is the New South Wales system efficient in terms of moving through the various stages of a claim, but also when a matter is resolved. Orders are made either immediately or very soon after a resolution is achieved. There’s no post mediation application process and lengthy submissions like in Queensland.
Given the court’s intention is for these types of disputes to be resolved in an efficient and cost effective way, it makes sense to have an organised and practical family provision process.