Trials – Order 49

Question 1

Order of evidence

Answer 1

• While court generally can choose who goes first, generally:
  o Where the burden of proof on any question lies on the plaintiff, the plaintiff will commence;
  o Where the burden of proof on all issues lies with the defendant, the defendant will begin.

Question 2

What procedure is followed in trials?

Answer 2

1. The party commencing will open its case with an opening address;
2. That party will then call its witnesses, who will give evidence in chief;
3. The other party may cross examine the witnesses;
4. After calling all witnesses in its case, the party commencing first will then make closing addresses; and
5. The party going second will follow, but there will typically be a right of reply for the party commencing.

Question 3

What is the court’s power re adjournments?

Answer 3

• Court has the inherent power to grant adjournments on such terms as it thinks fit in order to do justice between the parties (r49.03)

Question 4

How an adj app is considered?

Answer 4

• The discretion is exercised on the basis of whether a party would be seriously prejudiced if the adjournment was not granted.
• Application must be made on clear and persuasive grounds, such as:
  o Unexpected unavailability of a witness;
  o Discovery of new evidence; or
  o To effect amendments to pleadings.