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Trial Or No Trial Notes

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IX Trial and How to Avoid Trials

* Deferral of trial

* Adjournment

* Stay of proceedings

* Disposition without Trial

* Default judgment Adjournment

* Summary judgment Vacation of hearing dates

* Summary Disposition

* Dismissal Stay of proceedings

* Discontinuance

* Can be temporary or permanent and often temporary stays

* Stay of Proceedings

* Settlement (including Offers of Compromise)

Deferral of Trial

end up becoming permanent.
Therefore, stays are often summary disposition rather than deferral and will be considered in more detail there.

Adjournment CIVIL PROCEDURE ACT 2005 Bank of Western Australia Ltd v Callipari [2011]:

* Application to adjourn hearing refused.

* Court followed Aon v ANU considerations against adjournment:

* meed for public confidence in judicial system

* public money wasted in adjournments

* prejudice caused by delay

* costs cannot always compensate for delay so "justice" does not always mean allowing adjournments with costs.

66 Adjournment of proceedings (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. (2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time. Summary Disposition (Disposition without Trial) Summary disposal is a label used to describe applications to the court that can result in proceedings being concluded before a trial. Each party can seek summary disposition if there is no arguable case of fact of law which can be raised by the other party.

* There must be an unanswerable case, since court is making a judgment without a full trial.
Therefore, the threshold for summary disposition is high: General Steel Industries Inc v Commissioner for Railways (NSW) (1964): Barwick J: Jurisdiction to be employed sparingly, not to be used in except clear cases where court is satisfied that the requisite material and assistance from the parties is used to reach a certain and definite conclusion Ashby v Commonwealth of Australia (No. 4) [2012]
...The power of the Court to prevent an abuse of process is, as in this case, ordinarily exercised summarily, and without a full hearing on the merits. If the power is exercised, the person who brought the proceedings will not be afforded a full trial at which the matters he, she or it regarded as giving rise to a controversy will be resolved. That consideration ensures that the Courts are cautious about exercising their power and will only do so in a clear case ... Hepburn v McLaughlins Nominee Mortgage Pty Ltd & Aerogala Pty Ltd [1997] QCA

* Must be clear that there is no real question to be tried

* This must be clear on the whole of the evidence; and

* Defendant does not need to show a complete defence. Application of this kind are usually provided for in the UCPR. default judgment summary judgment dismissal discontinuance 1

IX Trial and How to Avoid Trials

stay of proceedings settlement Default Judgment UNIFORM CIVIL PROCEDURE RULES 2005 PART 16 - DEFAULT JUDGMENT

16.1 Application of Part This Part applies to proceedings commenced by statement of claim.

28 days after service on the defendant of the statement of claim.

Liquidated claim: The amount claimed is known or can be determined by a formula or scale without recourse to assessment or opinion. Unliquidated claim: A claim for damages and requires an assessment by the court.

16.2 Definition of "in default" (1) A defendant is "in default" for the purposes of this Part: (a) if the defendant fails to file a defence within the time limited by rule 14.3 (1) or within such further time as the court allows, or (b) if the defendant fails to file any affidavit verifying his or her defence in accordance with any requirement of these rules, or (c) if, the defendant having duly filed a defence, the court orders the defence to be struck out. (2) Despite subrule (1), a defendant is not in default if the defendant: (a) has made a payment towards a liquidated claim under rule 6.17, or (b) has filed an acknowledgment of claim under rule 20.34, or (c) has filed a defence after the time limited by these rules or allowed by the court, but before a default judgment is given against the defendant.

16.3 Procedure where defendant in default (1) If a defendant is in default, the plaintiff: (a) may apply for judgment to be given under this Part, according to the nature of his or her claim for relief, against the defendant in default, and (b) may carry on the proceedings against any other party to the proceedings. (1A) Unless the court otherwise orders, an application under this rule: (a) may be dealt with in the absence of the parties, and (b) need not be served on the defendant. (2) Unless the court orders otherwise, an application for judgment to be given under this Part must be accompanied by: (a) an affidavit of service of the statement of claim ("the affidavit of service" ), and (b) an affidavit in support of the application ("the affidavit in support" ). (3) An affidavit of service is unnecessary in relation to a statement of claim whose service has been effected by the Local Court under rule 10.1 (2). (4) Unless the court orders otherwise, an affidavit in support is valid for the purposes of an application only if it has been sworn within 14 days before the date on which the application is filed.

16.6 Default judgment on debt or liquidated claim (1) If the plaintiff 's claim against a defendant in default is for a debt or liquidated claim or for a claim for unliquidated damages of the kind referred to in rule 14.13 (2), judgment may be given for the plaintiff against the defendant for: (a) a sum not exceeding the sum claimed, and (b) interest up to judgment, and (c) costs. (2) The relevant affidavit in support: (a) must state the amount due to the plaintiff, in respect of the cause of action for which the proceedings were commenced, as at the time the originating process was filed, and (b) must give particulars of any reduction of that amount, and costs, as a consequence of any payments made, or credits accrued, since the time the originating process was filed, and 2

IX Trial and How to Avoid Trials

(c) must state the source of the deponent's knowledge of the matters stated in the affidavit concerning the debt or debts, and (d) must state the amount claimed by way of interest, and (e) must state whether costs are claimed and, if so, how much is claimed for costs, indicating: (i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004 ), and (ii) how much is claimed on account of filing fees, and (iii) how much is claimed on account of the costs of serving the originating process, and (f) must state when and how the originating process was served on the defendant.

16.7 Default judgment on claim for unliquidated damages (1) If the plaintiff 's claim against a defendant in default is for unliquidated damages only, judgment may be given for the plaintiff against the defendant for damages to be assessed and for costs. Note: See Part 30 for provisions as to assessment of damages. (2) The relevant affidavit in support: (a) must state that the matter has not been settled with the defendant, and (b) must state the source of the deponent's knowledge of the matters stated in the affidavit concerning the claim, and (c) must state whether costs are claimed and, if so, how much is claimed for costs, indicating: (i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004 ), and (ii) how much is claimed on account of filing fees, and (iii) how much is claimed on account of the costs of serving the originating process, and (d) must state when and how the originating process was served on the defendant.

16.8 Default judgment on mixed claims (1) If the plaintiff 's claim against a defendant in default includes any 2 or more of the claims referred to in this Part, and no other claim, judgment may be given for the plaintiff against the defendant on any of those claims as if it were the plaintiff 's only claim for relief against that defendant. (2) In the case of two or more such claims, the relevant affidavit in support must comply with the requirements of this Part in relation to each of those claims. Defendant must establish defence on the merits and explain the delay in filing a defence (or adequate defence where defence filed but struck out).

36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). 3

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