Civil Procedure - Court Supervision (Directions/ Failure to Comply)

Question 1

Which rules relate to Directions?

Answer 1

Rules 366 and 367

Question 2

When can a court make directions about the conduct of a proceeding?

Answer 2

Rule 366 (2)

At any time.

Question 3

When can a party apply for directions?

Answer 3

Rule 366 (3)

At any time.

Question 4

What types of orders/directions can the court make?

Answer 4

Rule 367(1)

The court can make ANY order or direction about the conduct of a proceeding it considers appropriate, EVEN THOUGH IT MAY BE INCONSISTENT WITH ANOTHER PROVISION OF THESE RULES.

Question 5

What is the paramount consideration when making an order or direction?

Answer 5

Rule 367(2)

Interests of Justice

Question 6

List some of the things a court can do in relation to a trial or hearing of a proceeding

Answer 6

Rule 367(3)

a) require copies of pleadings for use of the court prior to trial or hearing

b) limit time of trial/ hearing

c) limit time of party to present it’s case

d) require evidence to be given by affidavit, orally or some other way

e) limit number of witnesses a party can call (including experts)

f) limit time for EIC, XXN, Re-XN a witness

g) require submission be made in certain way (e.g orally/written etc).

h) limit time for oral submission

i) limit length of written submission or affidavit

j) require statements of witnesses be provided prior to trial.

Question 7

What can the court have regard to when making directions?

Answer 7

Rule 367(4)

a) each party is entitled to fair trial

b) time allowed for a step in proceeding must be reasonable

c) complexity or simplicity of the case

d) importance of the issues and the case as a whole

e) volume and character of the evidence to be led

f) time expected to be taken by the trial or hearing

g) number of witnesses to be called by the parties

h) each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses

i) the state of the court lists

j) any other relevant matter

Question 8

What happens if the courts order or direction is inconsistent with another provision of the UCPR?

Answer 8

Rule 367(5)

The courts order or direction prevails to the extent of the inconsistency.

Question 9

At what time can a court revoke or vary an order or direction made under s167?

Answer 9

Rule 367(6)

At any time.

Question 10

Does failure to comply with the rules render a proceeding, a document, step-taken or order made in a proceeding null and void?

Answer 10

Rule 371(1)

No

Question 11

What can the court do if there has been a failure to comply with the rules?

Answer 11

Rule 371(2)

(Subject to 372 and 373)

a) set aside all or part of the proceeding

b) set aside a step taken or an order made in the proceeding

c) declare a document or step taken to be ineffectual

d) declare a document or a step taken to be effectual

e) make another order that could be made under these rules

f) make such other order dealing with the proceeding generally as the court considers appropriate