Order 47 - Place and mode of trial

Question 1

Place of trial 47.01 (Melbourne unless indorsed otherwise)

Answer 1

Unless the Court otherwise orders, place of trial shall be determined per rule 5.08. (As indorsed on writ or otherwise in Melbourne)

Question 2

Mode of trial 47.02 (if K/Tort, jury if P in writ or D within 10 days of last appearance signifies intention and pays jury fees - jury of six - but court has veto power on this if thinks the proceeding should not, in all the circumstances, be tried before a jury)

Answer 2

(1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if —
● (a) P in the writ or D by notice in writing to P and prothonotary within 10 days of last appearance, signifies that P or D (as appropriate) desires to have jury trial (b) and prescribed jury fees paid.
● (3) Note court has veto power on this if thinks the proceeding should not, in all the circumstances, be tried before a jury.
● (4) If jury, shall be jury of 6.
(2) Any other proceeding shall be without a jury, unless the court otherwise orders.

Question 3

Payment of jury fees 47.03 (on default, trial w/o jury)

Answer 3

(1) Party who wants the jury pays for the jury per s 24 of JA to Proth.
(2) If proceeding is to be tried with jury because defendant so signified by notice in writing, prescribed fees shall be paid by D to Prothonotary within 14 days after the date is fixed for the trial of the proceeding.
(3) On default, court may order trial without jury
(4) must produce copy of receipt for payment of fees to associate
(a) before trial commences (b) before trial resumes on each jury day

Question 4

Separate trial of question 47.04

Answer 4

Court may order that (a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions about the manner in which it shall be stated
(b) Different Qs may be tried at different times + by different trial modes

Question 5

Judgment after determination of preliminary question 47.05

Answer 5

If determination of any Q in proceeding and tried separately from the proceeding substantially disposes of the proceeding or renders the trial of the proceeding unnecessary, the Court may dismiss the proceeding or make such other order or give such judgment as it thinks fit.