1DDirections for trial management

1D Directions for trial management (1) A Judge, Judicial Registrar, Registrar or Magistrate may make any direction about the conduct of a proceeding considered appropriate, even though the direction may be inconsistent with a provision of these Rules. (2) In deciding whether to make an order or direction, the interests of justice are paramount. (3) Without limiting subrule (1), a Judge, Judicial Registrar, Registrar or Magistrate may in a particular case at any time by direction: (a) limit the time to be taken in examining, cross‑examining or re-examining a witness; or (b) limit the number of witnesses (including expert witnesses) that a party may call on a particular issue; or (c) require submissions to be made in the way the court directs, for example, in writing, orally, or by a combination of written and oral submission; or (d) limit the time to be taken in making any oral submission; or (e) limit the length of a written submission or affidavit; or (f) limit the time to be taken by a party in presenting the party’s case; or (g) limit the time to be taken by the hearing. (4) However, a direction must not: (a) detract from the attainment of justice; or (b) detract from the principle that each party is entitled to a fair and just hearing; or (c) detract from the principle that each party must be given a reasonable opportunity to lead evidence, cross-examine and re-examine witnesses and to address the Court. (5) The Judge, Judicial Registrar, Registrar or Magistrate may amend a direction at any time. 2 Evidence in chief (1) Unless the court otherwise orders, evidence in chief must be given by affidavit at the hearing of an application. (2) No later than 14 days before the date fixed for the pre-trial conference, or as directed by the Registrar, each party must file and serve on each other party who has filed an address for service in the proceedings: (a) 1 affidavit setting out the party’s evidence; and (b) for each witness whom the party intends calling at the hearing: (i) 1 affidavit of the witness setting out the witness’s evidence; or (ii) if the witness refuses to make an affidavit — a notice to that effect setting out the name of the witness. (3) Despite any other provision of this rule, an affidavit in accordance with subrule (1) may include by reference but, unless the inclusion is less than one folio in length, not by repetition, relevant parts of any affidavit previously sworn by the same deponent and filed and served in the proceedings. 2AA Admissibility of affidavits An affidavit is not admissible in evidence at the hearing of the proceedings unless: (a) it was filed as directed by a court; or (b) it was filed and served under rule 2; or (c) the court orders otherwise. 2AAA Taking evidence by electronic means (1) In this rule: > judicial officer means a Judge, Judicial Registrar, Magistrate, Registrar or Deputy Registrar. (2) A party may seek leave to appear, make a submission or adduce evidence by electronic means by filing an application: (a) for a trial — in accordance with Form 8; and (b) for a hearing (other than a trial) — in the form of a written request. (3) The application must be filed and served at least 7 days before the date listed for the hearing or such other time as a judicial officer determines. (4) The application must be listed before the judicial officer who is to hear the matter, or, if that judicial officer is unavailable, before the judicial officer in charge of the relevant list. (4A) A party who makes an application under paragraph (2) (a) may appear by telephone at the hearing of the application. (4B) An application made under paragraph (2) (b) must be considered in chambers in the absence of the parties, unless otherwise ordered by the court. (5) Unless otherwise ordered, the application must be accompanied by an affidavit setting out: (a) whether the application relates to an oral submission or evidence, or both; and (b) the type of electronic means proposed to be used; and (c) the name and address of the person to appear, make the submission or give the evidence; and (d) the nature of the submission sought to be made or the evidence proposed to be given; and (e) the reasons why the court should give leave; and (f) in the case of evidence: (i) whether an affidavit of evidence in chief has been filed; and (ii) whether leave is sought for evidence in chief to be given; and (iii) the relevance of the evidence to the matters in issue; and (iv) whether the witness is an expert witness; and (v) the name, address and office of any person who is to be present when the evidence is given; and (vi) the name, address and office of any person who will assist the witness by introduction, the administration of an oath or affirmation or the carrying out of any direction of the judicial officer hearing the matter; and (vii) the place from which it is proposed the evidence be given; and (viii) if the witness is to be referred to a document — whether the document has been filed and whether the witness will have a copy of it; and (ix) whether an interpreter is required and, if so, what arrangements are to be made; and (g) the cost of use of the electronic means, including any cost to the court and the arrangements to be made by the applicant for the payment of those costs; and (h) whether the other parties to the proceeding consent to, or do not oppose, the use of the electronic means; and (i) if the submission or evidence is to be given from a foreign country (other than New Zealand): (i) whether permission is needed from the relevant foreign government and, if so, whether it has been given; and (ii) whether the administration of an oath or affirmation is lawful and, if so, in what form. (6) In granting leave, the court may impose such conditions as it thinks fit including apportioning the cost of use of the electronic means between the parties. (7) The court may at any time withdraw leave or vary any conditions imposed. 2AAB Taking foreign evidence by electronic means (1) In addition to the requirements of rule 2AAA, a party who proposes to adduce evidence by telephone or video conference or other electronic means from a witness in a foreign country, must satisfy the Court: (a) that the party has researched the information published by the Attorney-General’s Department regarding its arrangements with other countries for the taking of evidence, to determine the attitude of the foreign country’s government to the taking of evidence by electronic means; and (b) if the attitude of the foreign country’s government to the taking of evidence by electronic means cannot be ascertained from sources within Australia — that the party has made appropriate inquiries through diplomatic channels, a lawyer or a provider of technical facilities in the foreign country to determine that attitude; and (c) of whether permission is needed from the foreign country’s government to adduce evidence from a witness in that country by electronic means; and (d) if permission is needed, of whether permission has been granted or refused; and (e) if permission has been refused, about the reason for refusal; and (f) about whether there are any special requirements for the adducing of evidence, including: (i) the administration of an oath; and (ii) the form of the oath. (2) In this rule: > foreign country means a country other than Canada, New Zealand, the United Kingdom and the United States of America. > Note 1 A party seeking to adduce evidence from a witness in Canada, New Zealand, the United Kingdom or the United States of America does not have to comply with the requirements in subrule (1) as these countries do not object to the taking of evidence by video link. > Note 2 The Court may, instead of granting permission for a party to adduce evidence by electronic means from a witness in a foreign country, direct the Registry Manager to send a letter of request to the judicial authorities in the foreign country, requesting the Court to take evidence from the witness in accordance with the laws of the foreign country. For the requirements for a letter of request to the judicial authorities of a foreign country, see rule 7. 2AB Admissibility of oral evidence Oral evidence in chief is admissible at the hearing only if: (a) the witness refused to swear an affidavit and a notice to that effect was filed under rule 2; or (b) the court gives leave. 2AC Hearsay evidence — notice under section 67 of the Evidence Act 1995 (1) In this rule, notice of previous representation means a notice given under subsection 67 (1) of the Evidence Act 1995. (2) A notice of previous representation: (a) must be in accordance with Form 38B; and (b) may have attached to it an affidavit that sets out evidence of the previous representation. > Note Subsection 67 (1) of the Evidence Act 1995 provides that certain exceptions to the hearsay rule specified in that Act do not apply to evidence adduced by a party unless that party has given reasonable notice, in writing, to each other party of the party’s intention to adduce the evidence. For the purposes of these Rules, the relevant sections of the Evidence Act 1995 are subsections 63 (2) and 64 (2). > Note: Subsection 67 (2) of the Evidence Act 1995 provides that a notice given under subsection 67 (1) of that Act is to be given in accordance with any regulations or rules of court made for the purposes of section 67 of that Act. Regulation 5 of the Evidence Regulations sets out the requirements in relation to a notice given under section 67. > Note: In addition, subsection 67 (3) of the Evidence Act 1995 provides that a notice must state: > Note: (a) the particular provisions of Division 2 of Part 3.2 of the Evidence Act 1995 on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and > Note: (b) if subsection 64 (2) is such a provision — the grounds, specified in that provision, on which the party intends to rely.