Legal development

Consolidated Land Court practice directions

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    Key Insights

    • In December 2020, the Land Court published new Consolidated Practice Directions as requested by the profession in one of its regular consultation sessions with the Court.  
    • The Consolidated Practice Directions cover the following matters: digital procedures in the Land Court; representation of parties; alternative dispute resolution; expert evidence in the Land Court; mining objection hearings; compensation for resource projects; and certain other matters.

    Digital procedures

    Practice Direction 5 of 2020, issued on 11 December 2020, deals with the digital procedures used in the Land Court including electronic filing, hearing arrangements and the eTrial portal. The key purposes of this practice direction are to: 

    • facilitate the Court dealing with cases in a way that is accessible, fair, just, economical and expeditious;
    • encourage the efficient and cost-effective management of documents at all stages of litigation; and
    • facilitate the conduct of electronic trials.

    This practice direction repeals and replaces Practice Direction 1 of 2019 – eTrials (Electronic hearings) and Practice Direction 2 of 2019 – Provision of Electronic Documents to the Land Court.

    Representation of parties

    The Consolidated Practice Directions also include Practice Direction 5 of 2017 which deals with representation by agents and Practice Direction 4 of 2017 which deals with direct access briefing.  Both of these practice directions facilitate the representation of parties by persons other than legal practitioners in order to "minimise the risk of disruption to litigation" and to "promote the orderly conduct of cases". 

    Alternative Dispute Resolution

    Practice Direction 4 of 2020, issued on 19 November 2020, deals with the procedure for nomination of an ADR convenor, or the process, when the parties cannot agree on a convenor.  In such a case, a party may make a request that the Judicial Registrar made the relevant nomination.  Practice Direction 1 of 2018 and Practice Direction 3 of 2017 also deal with ADR procedures and detail the process for court-supervised mediations, while Practice Direction 2 of 2015 specifically deals with the preliminary conference process for appeals under the Land Valuation Act 2010

    Expert evidence

    Practice Direction 6 of 2020, issued on 14 December 2020, provides a detailed overview of the procedures for expert evidence, the duties of expert witnesses, and their respective parties, and the Court's expectations regarding expert witnesses.

    This practice direction repeals and replaces Practice Direction 2 of 2017 and Practice Direction 3 of 2018.

    Mining objection hearings

    Of particular interest, and in light of recent litigation in the Land Court, Practice Direction 4 of 2018, amended on 7 April 2020, details the process that the Land Court will adopt for mining objection hearings.  The circumstances where the Land Court is required to conduct a mining objection hearing include where a person objects to a mining claim application, a mining lease application or an environmental authority application relating to a mining lease.  

    After hearing the mining objection, the Land Court is required to make a recommendation to the "decision-maker" on the basis of the evidence admitted and submissions made during the hearing alone.  As such, the Land Court does not play an investigative or inquisitive role in its conduct of mining objection hearings.  Practice Direction 6 of 2017 specifically details the process for determining costs in matters where the Court performs a recommendatory function, such as in mining objection hearings.

    Compensation for resource projects

    Practice Direction 3 of 2019, amended on 11 August 2020, details the process that the Land Court adopts in both compensation disputes as well as conduct and compensation disputes, recognising that the parties may be economically incentivised to resolve such disputes by agreement through ADR.

    Other matters

    The Consolidated Practice Directions also include practice directions on a number of discrete matters, including: 

    • Practice Direction 1 of 2017 which deals with case management procedures for compensation determinations relating to resource projects; 
    • Practice Direction 2 of 2018 which deals with site inspections; 
    • Practice Direction 7 of 2015 which deals with filing written submissions; and
    • Practice Direction 5 of 2009 which deals with the form of address in Court.
    Author: Leanne Mahly, Lawyer.
    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.

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