Division 2 Powers of court to give directions

61   Directions as to practice and procedure generally

(cf SCR Part 23, rule 4; Act No 9 1973, section 68A)

(1)  The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

(2)  In particular, the court may, by order, do any one or more of the following:

(a)  it may direct any party to proceedings to take specified steps in relation to the proceedings,

(b)  it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,

(c)  it may give such other directions with respect to the conduct of proceedings as it considers appropriate.

(3)  If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following:

(a)  it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim,

(b)  it may strike out or limit any claim made by a plaintiff,

(c)  it may strike out any defence filed by a defendant, and give judgment accordingly,

(d)  it may strike out or amend any document filed by the party, either in whole or in part,

(e)  it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce,

(f)  it may direct the party to pay the whole or part of the costs of another party,

(g)  it may make such other order or give such other direction as it considers appropriate.

(4)  Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court.

62   Directions as to conduct of hearing

(cf Act No 52 1970, section 87; Act No 9 1973, section 77 (4); SCR Part 34, rules 6 and 6AA)

(1)  The court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made.

(2)  The court may, by order, give directions as to the order in which questions of fact are to be tried.

(3)  Without limiting subsections (1) and (2), the court may, by order, give any of the following directions at any time before or during a hearing:

(a)  a direction limiting the time that may be taken in the examination, cross-examination or re-examination of a witness,

(b)  a direction limiting the number of witnesses (including expert witnesses) that a party may call,

(c)  a direction limiting the number of documents that a party may tender in evidence,

(d)  a direction limiting the time that may be taken in making any oral submissions,

(e)  a direction that all or any part of any submissions be in writing,

(f)  a direction limiting the time that may be taken by a party in presenting his or her case,

(g)  a direction limiting the time that may be taken by the hearing.

(4)  A direction under this section must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity:

(a)  to lead evidence, and

(b)  to make submissions, and

(c)  to present a case, and

(d)  at trial, other than a trial before the Local Court sitting in its Small Claims Division, to cross-examine witnesses.

(5)  In deciding whether to make a direction under this section, the court may have regard to the following matters in addition to any other matters that the court considers relevant:

(a)  the subject-matter, and the complexity or simplicity, of the case,

(b)  the number of witnesses to be called,

(c)  the volume and character of the evidence to be led,

(d)  the need to place a reasonable limit on the time allowed for any hearing,

(e)  the efficient administration of the court lists,

(f)  the interests of parties to other proceedings before the court,

(g)  the costs that are likely to be incurred by the parties compared with the quantum of the subject-matter in dispute,

(h)  the court’s estimate of the length of the hearing.

(6)  At any time, the court may, by order, direct a solicitor or barrister for a party to give to the party a memorandum stating:

(a)  the estimated length of the trial, and the estimated costs and disbursements of the solicitor or barrister, and

(b)  the estimated costs that, if the party were unsuccessful at trial, would be payable by the party to any other party.

63   Directions with respect to procedural irregularities

(cf Act No 52 1970, section 81; Act No 9 1973, section 159; Act No 11 1970, section 75A)

(1)  This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.

(2)  Such a failure:

(a)  is to be treated as an irregularity, and

(b)  subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.

(3)  The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1):

(a)  it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part,

(b)  it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally.

(4)  The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.