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Topic 13 Trial Notes

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This is an extract of our Topic 13 Trial document, which we sell as part of our Civil Procedure Notes collection written by the top tier of Monash University students.

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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 o Court may fix a date for the trial of a proceeding after notice for trial has been filed and served (r48.02) o Plaintiff must sign a notice of trial under r48.02 at close of pleadings and after exchange of evidence (r48.02) o 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) o Plaintiff will pay setting down fees (r48.04.01) o May have to have a pretrail conference 48.07 If P fails to do so within reasonable time, D may (r48.04(1)) o File a notice of trial itself; or o Apply to dismiss claim for want of prosecution o 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 o 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 o The process of listing begins when lawyers for the parties inform the Master or the judge that the directions are ready for trial. o Matter referred to the listing master who allocates a directions hearing date within 24 weeks o Mediation must have taken place o 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:

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