#7374 - Topic 13 Trial - Civil Procedure

TOPIC 13: TRIAL

1. Setting down for trial outside specialist list

• The matter must be formally set down for trial: step after close of pleadings and exchange of evidence.\

• Trial date fixed at Directions Hearing on the plaintiff’s application

  • Court may fix a date for the trial of a proceeding after notice for trial has been filed and served (r48.02)

  • Plaintiff must sign a notice of trial under r48.02 at close of pleadings and after exchange of evidence (r48.02)

  • P fills out Form 48A ‘Notice of Trial’ that indicates to the court that they are ready. Requires them to give estimate as to length of case and that it will be ready two weeks from notification from the court. (r48.03)

  • Plaintiff will pay setting down fees (r48.04.01)

  • May have to have a pre-trail conference 48.07

• If P fails to do so within reasonable time, D may (r48.04(1))

  • File a notice of trial itself; or

  • Apply to dismiss claim for want of prosecution

  • Court may dismiss the proceedings r24.01

    • Inherent jurisdiction exists alongside the rules, if the interests of justice demand it the claim may be dismissed.

    • The power should be exercised only where the Court is satisfied either: Lord Griffiths in Department of Transport v Chris Smaller (Transport) Limited

      • that the default has been intentional and contumelious, e.g. disobedience to a pre-emptory order of the Court or conduct amounting to an abuse of the process of the Court; or

      • that there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and

      • that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party.” Per

• Practice Note No 4 of 2006

  • Applies to cases other than

    • Cases in lists where the managing judge is also the trial judge

    • Cases where the managing judgment has caused the case to be set down for trial early

    • Cases in the nature of appeals or reviews

  • The process of listing begins when lawyers for the parties inform the Master or the judge that the directions are ready for trial.

  • Matter referred to the listing master who allocates a directions hearing date within 2-4 weeks

  • Mediation must have taken place

  • Solicitors must sign a statement saying how long it will take

2. Setting down for trial within specialist list

• Some specialist lists have their own processes for setting down

• r48.01(2) excludes from Order 48:

  • (a) Admiralty List;

  • (b) Technology, Engineering and Construction List (TEC List);

  • (c) Commercial List;

  • (d) Corporations List;

  • (e) Intellectual Property List;

  • (f) Valuation, Compensation and Planning List.

• Practice Notes dictate different methods for these lists

• Preparing the right documents:

  • All lists require some standard documents by each party, such as lists of authorities, case summaries, court books, witness statements or witness summaries to be filed and served prior to trial

    • E.g. Notice of Hearsay under section 67 of the Evidence Act 2008 (and Reg. 7 of the Evidence Regulations 2009) served within “reasonable time”

  • But Specialist Lists require special documents

3. Mode of trial

• The normal default mode of trial is by judge alone (will occur if they haven’t written anything else) r5.08

  • Proceedings conducted by originating motion must be tried by judge alone (as they don’t involve questions of fact)

• Rule 47.02(1) Right to trial by jury: claims in tort or contract can be tried by jury if Plaintiff indorses writ or Defendant files written notice within 10 days of Appearance

  • “Right” to trial by jury of 6 is restricted to a small category of common law cases

    • E.g. tort and contract

    • Rare (except in personal injury and defamation)

  • But courts can allow a trial by jury even if parties don’t have a prima facie right

    • If proper request for trial by jury, party has a prima facie right to it: Trevor Roller Shutter Service Pty Ltd v Crowe (r47.02(1))

    • But Court may order a matter listed for trial by jury to proceed by way of judge alone as a cause: Gunns Ltd v Marr E.g. matter too complex

    • If you ask for it, you pay for it (r47.03)

• Statutory basis for jury procedures: Part 6 of the Juries Act 2000 (Vic): jury pool, selection and challenges, verdicts. Overrides Rules to extent of any inconsistency.

• Court can order that different questions be tried in different places or different modes r 47.04

4. Place of trial

• Plaintiff may indorse writ with place and mode of trial, or Originating Motion with place of trial r5.08

• In default, place is Melbourne, and place as indorsed unless contrary order r47.01

• Court can order that different questions be tried in different places or different modes r 47.04

5. Order of Evidence and Addresses

• How is evidence given at trial?

  • Orally in most trials (r40.02(a)) but court can order otherwise 40.03

  • In writing:

    • Specialist lists where witness statements are ordered

    • Affidavit at interlocutory hearings or when commence by originating motion or by leave at trial

  • Now trend away from Affidavits. – except in Family Law Rules 2004: Affidavits, though supplemented orally.

  • “Views” by jury are permitted and regulated in several ways: RSC r40.13, Evidence Act 2008 ss52 – 54, and Juries Act 2000, s45.

• Court can give any direction necessary to further the overarching obligations 49 CPA

• Court has overall discretion as to who goes first (r49.01)

  • Where burden of proof on any question lies on the plaintiff, the plaintiff begins (r49.02(a))

  • Where the burden of proof on all the questions lies on the defendant, the defendant begins (r49.02(b))

  • Court can adjourn as it sees fit r49.03

• The party who begins may make an address opening the party’s case and may then adduce that party’s evidence (r49.01(4))

  • Opening address is a narrative of the case

  • P delivers opening address then calls evidence (r49.01(4))

  • Each witness may be cross-examined by D and re-examined by P (Evidence Act 2008 s28)

  • P then closes its case (calls no further evidence)

• The defendant can elect to call no evidence and make a “no case” submission i.e. submit that there is no case to answer Protean (Holdings) Ltd v American Home Assurance Co

  • When, in the course of the case for the party who begins, no document or thing is admitted in evidence and at the conclusion of that case (r49.05) –

1. the opposite party adduces evidence, the opposite party may first make an opening address and after adducing that party’s evidence, the opposite party may make a closing address and thereafter the party who began may make a closing address;

2. the opposite party does not adduce evidence, the party who began may make a closing address and then the opposite party may make an address

   • D will be cross-examined by P and re-examined by D

   • D will get the closing address

     • Closing address is an argument for a particular outcome based on evidence or inferences to be drawn from evidence.

   • If there are multiple defendants and they all adduce evidence, the order of the addresses will be their order on the records

   • Where there are multiple defendants but only one adduces evidence, the plaintiff will nonetheless have the last word: Powell v Begg.

• Alternatively the defendant can call evidence.

  • When, in the court of the case for the party who begins, any document or thing is admitted in evidence on tender by the opposite party, and at the conclusion of that case (r49.01(6)) –

1. the opposite party adduces (offers) evidence, the order of proceedings shall be as provided by paragraph (5)(a)

2. The opposite party does not adduce evidence, the opposite party may make an address and then the party who began may make a closing address

   • Plaintiff gets to make the closing address

• Content of addresses

  • Should not contain reference to alleged facts unless the party is able and intending to prove those fact. Should not include anything “inflammatory”

  • In extreme cases, the judge may deal with a breach by discharging a jury and ordering the offending party to pay the costs, or if not jury, to terminate the trial

  • Other alternatives could be doing nothing, reprimanding counsel, permitting the other party to do something to overcome detriment

  • It is rare for a judge alone to be so prejudiced by an inadmissible statement to leave him with no alternative but to terminate the...