Civil Trials Bench Book — Procedure generally

Section 62(1) of the CPA provides that the court may make directions as to the conduct of any hearing, including the following:

Other sections of the CPA also apply:

See “Civil juries” at [3-0000].

Rule 29.3 provides that the court may make such order as it thinks fit for fixing the time and place of trial. The following statement of principle is taken from National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 162:

For a more detailed discussion, see Ritchie’s at [29.3.5].

See “Adjournment” at [2-0200].

See “Change of venue and transfer between New South Wales courts” at [2-1200].

Rule 29.7 applies if a party is absent when the trial is called on.

The court may proceed with the hearing or adjourn the proceedings: r 29.7(2).

If the plaintiff appears on a liquidated claim and the defendant does not, the court may take evidence and give judgment against the defendant: r 29.7(3).

In any case where the defendant appears and the plaintiff does not, the court may dismiss the proceedings: r 29.7(4).

Unless the court otherwise orders, proceedings are to be listed for trial generally, that is, for hearing of all questions and issues arising on every claim for relief in the proceedings: r 29.4.

As to the determination of issues remitted by the Court of Appeal, see State of New South Wales v Burton [2008] NSWCA 319.

Rule 29.1 provides, in effect, as follows. If the burden of proof on any issue lies on the plaintiff, the plaintiff is to be the beginning party and the defendant the opposite party; if the burden of proof on all issues is on the defendant, it is the other way around. The rule is expressed to be subject to any direction of the court.

The rule prescribes which party is to adduce evidence first, subject to any direction of the court. The rule also serves as a definition clause. In Pt 29, the terms “beginning party” and “opposite party” have the meanings given to them in the rule.

More particular provisions concerning the order of evidence and of addresses appear in r 29.6. The provisions of that rule are clear but intricate. Nothing would be served by quoting them here.

The rule provides that, in the case of multiple parties, the order of evidence and addresses is to be according to the rule subject to modification as required. The general rule of practice where there is more than one defendant is that counsel for the first defendant addresses first, and so on.

It should be stressed that the procedural scheme laid down by r 29.6 is expressed to be subject to any direction by the court. As an example see Keramianakis v Regional Publishers Pty Ltd (2007) 70 NSWLR 395 at [54]–[62].

In particular, the provisional order of final addresses may be altered where, as is usually the case, the plaintiff is the beginning party and the defendant also adduces evidence. The rule provides that the defendant gives the first closing address in those circumstances. However, particularly in a trial without a jury, it is usually best to hear the plaintiff first in final address (with a right of reply) irrespective of whether the defendant has gone into evidence. This has long been the practice in Equity. The advantage is that the defendant then knows how the plaintiff puts its case rather than having to anticipate it. The saving in time and costs can be considerable.

Section 62 of the CPA provides that the court may give directions as to the order in which evidence is to be given. However, the discretion is to be exercised judicially and earlier authorities relating to the exercise of that discretion should be taken to apply.

The general rule is that counsel calling a witness for examination is entitled to determine the order in which the witnesses are called. This has different consequences in practice, depending on whether the trial is on evidence given orally or on evidence given by affidavit.

In a trial on evidence given orally, the evidence is led in whatever order counsel for the party adducing the evidence wishes; and denial of that entitlement is an error which may result in a new trial being ordered on appeal: Briscoe v Briscoe [1968] P 501; Barnes v BPC [1976] 1 All ER 237; Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1120.

There is a rider to that rule of practice. Having allowed counsel to call the witnesses in whatever order counsel wishes, the court may, on the application of cross-examining counsel, allow the cross-examination of a particular witness to be deferred until a later stage in the proceedings: Michelson v Nicoll (1851) 18 LTOS 198; GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 24.

In a trial on evidence given by affidavit, the affidavits are usually read at an early stage of the proceedings. Counsel for a party requiring witnesses for the opposite party to be called for cross-examination is taken to be calling the witnesses and is, accordingly, entitled to decide the order in which such witnesses are cross-examined: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3), above, at 24.

There may be a difference in the principles applicable to criminal and civil trials in relation to this topic. Only the principles relating to civil proceedings are reviewed here.

A statutory basis for a judge having the power to call a witness has been found in s 26 of the Evidence Act 1995 (Milano Investments Pty Ltd v Group Developers Pty Ltd (unrep, 13/5/97, NSWSC)) and in s 11 of the CPA: S Odgers, Uniform Evidence Law, 6th ed, 2006, LBC Information Services, Sydney at 1.2.1860 and 1.2.2000. However, it is suggested, with respect, that both approaches are problematic.

The principles governing the exercise of the discretionary power in relation to civil proceedings are not well settled absent such a statutory source of power. For a range of opinions, see Re Enoch and Zaretzky, Bock & Co’s Arbitration [1910] 1 KB 327; Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 at 567–568; Bassett v Host [1982] 1 NSWLR 206 per Hope JA at 207 and per Mahoney JA at 213; Damic v R [1982] 2 NSWLR 750 at 755–756, per Street CJ (in a criminal case but in relation to civil proceedings) and Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518 per Wilcox J at 536–540.

Given the present state of the authorities, it is suggested that it would be unwise for a judge to call a witness except in compelling circumstances.

At common law, the court had a discretion to order that witnesses be excluded from the court room until they gave their evidence: London Chartered Bank v Lavers (1855) 2 Legge 884. The discretion is now codified by s 26(d) of the Evidence Act 1995 which provides that the court may make such orders as it considers just in relation to the presence in court of any person in connection with the questioning of witnesses. It may be assumed that the common law authorities concerning the exercise of the discretion continue to apply.

What has come to be called “the order for witnesses” is, as a matter of practice, announced by the court officer in the following terms:

That then stands as an order of the court.

It is usual for the court to make an order for witnesses at the commencement of the hearing. Some judges also have the order made at the start of each succeeding day of a trial.

The making of an order for witnesses is not mandatory. It should however be done on request, if not done routinely.

Disobedience of an order for witnesses is a contempt of court but does not disqualify the witness from giving evidence: R v Briggs (1930) 22 Cr App R 68.

A party is entitled to be in court throughout the proceedings, notwithstanding that the party is to be called as a witness: see London Chartered Bank, above; Selfe v Isaacson (1859) 175 ER 597. It would accordingly be an error in the exercise of discretion to exclude a party from the courtroom at any stage of the proceedings unless that was justified by exceptional circumstances.

Notwithstanding the right to be in court, a party’s counsel may elect to keep the client out of court until called to give evidence in order to avoid the suggestion that the client’s evidence has been influenced by what the person has heard in court.

Counsel may also elect to keep a party out of court during medical evidence, particularly psychiatric evidence. A judge is at liberty to advise such a course.

It is usual to allow expert witnesses to be in court before giving their evidence.

It is a general rule that parties may not call part only of their evidence in chief, reserving some of their evidence for reply after the opposite party has given evidence.

There is an exception in relation to any issue on which a defendant bears the burden of proof, although even that may not be automatic: Beevis v Dawson [1957] 1 QB 195.

Where the situation can be anticipated, it is best to resolve any such question by direction at the start of the trial.

Leave to adduce further evidence is sometimes sought after the party has closed its case in circumstances where the other side has commenced to adduce evidence or has even completed its evidence.

The general rule is that the decision whether or not to allow such an application is to be made having regard to the interests of justice: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471. Where the evidence sought to be led was inadvertently overlooked, that is a consideration in favour of allowing the application. Where the evidence was withheld for tactical reasons, that is a consideration to the contrary: Smith v New South Wales Bar Association (1992) 176 CLR 256. Whether the opposite party would be prejudiced by allowing the application is an important consideration.

Rule 29.8 provides that, at any time, the court may, on application by the plaintiff make an order dismissing the whole or any part of the plaintiff’s claim or any cause of action relevant to that claim or part of the claim.

In the case of a jury trial, the application must be made before the jury gives a verdict: r 29.8(3).

The procedure corresponds with the earlier process of application by a plaintiff for leave to discontinue the proceedings, but the old rule that a plaintiff could not make such an application after the hearing had commenced no longer applies.

Subject to any terms imposed, such a dismissal does not prevent further proceedings being commenced for the same relief: CPA s 91. However, the plaintiff will usually be ordered to pay the costs of the discontinued proceedings and, if such costs are not paid, the further proceedings may be stayed: r 12.10.

Rule 29.9 provides for an application by a defendant for dismissal of the proceedings generally or as to any particular cause of action on the ground that, on the evidence given, a judgment for the plaintiff could not be supported.

The test for such an application, turns on the words “on the ground that, on the evidence given, a judgment for the plaintiff could not be supported”. The same words appear in r 29.10, a rule of similar import, and must accordingly be taken to have the same meaning as in r 29.9. There is direct authority as to the meaning of the words in the precursor to r 29.10. See below in relation to r 29.10.

The application may be made at any time after the conclusion of the evidence adduced in the plaintiff’s case in chief: r 29.9(2).

The court may only make an order on such an application if the plaintiff elects to argue the question: r 29.9(3) and (4).

If the plaintiff declines to argue the question or if the application is argued and fails, the defendant may go into evidence or may make an application under r 29.10 (judgment for want of evidence).

Where not all of multiple defendants apply, the court must not deal with the application before conclusion of the evidence given for all parties: r 29.10(5).

If the proceedings are dismissed under this rule, fresh proceedings may be brought by the plaintiff but, as in the case of dismissal under r 29.8, there will usually be an order for costs against the plaintiff and further proceedings may be stayed if such costs are not paid.

Rule 29.10 provides that the opposite party may apply for judgment, generally or on any claim for relief in the proceedings, on the ground that, on the evidence given, a judgment for the beginning party could not be supported.

Whether a judgment could be supported on the evidence is to be decided on “the jury basis”, that is, by asking whether a jury verdict in favour of the beginning party would have to be set aside on appeal as not having been reasonably open to the jury. In that evaluation, the evidence in favour of the beginning party must be taken at its highest.

For these principles, see Mailman v Ellison (unrep, 25/11/93, NSWCA) per Mahoney JA at 510.

The application may be made at any time after the conclusion of the evidence adduced in the beginning party’s case in chief: r 29.10(2).

There is no provision that the application can only proceed if the beginning party elects to argue the question, as in the case of r 29.9.

If an application under r 29.9 fails, the moving party is precluded from adducing evidence or further evidence in the proceedings generally or on the claim for relief (as the case may be) without leave of the court: r 29.10(4). This is also an important distinction. Under r 29.9, there is no such consequence.

Under the precursors to the rule (SCR Pt 34 r 7 and DCR Pt 26 r 8), the moving party was absolutely precluded from going into evidence if the application failed. That amounted to an election having to be made between making the application and going into evidence. That situation has now been relaxed somewhat by the provision in r 29.10(4) that leave may be granted to adduce evidence notwithstanding the failure of such an application.

As in the case of r 29.9, where not all of multiple opposite parties apply, the court must not deal with any such application before the conclusion of the evidence given for all parties: r 29.10(5).

Rule 29.14 provides that a court may refuse to hear or to continue to hear proceedings in respect of which a hearing allocation fee or a hearing fee has not been paid.

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