Schedule B to Order 10A of the National Court Rules 1983 is the standard Order for Hearing. Its deadlines run backwards from the date fixed for hearing — the trial date.
Counting back from trial
| When | What must happen |
|---|---|
| 28 days before | Serve each expert report relied on — para 1(a) |
| 28 days before | Serve a statement of the evidence proposed to be led from each witness, each page signed by the proposed witness — para 2 |
| 14 days before | Serve any responsive expert report — para 1(b) |
| 14 days before | State in writing whether you object to the whole or any part of a report served under (a), and the grounds — para 1(c) |
| 14 days before | State in writing any objection to a statement of evidence or affidavit, and the grounds — para 3(b) |
| 14 days before | Specify what documents you propose to tender, and where they may be inspected — para 4(1) |
| 7 days before | State any objection to a responsive report served under (b) — para 1(c) |
| 7 days before | Give notice of intention to tender an original document — para 5(1) |
| 7 days before | File and serve a supplementary list of documents and give supplementary inspection — para 6(c) |
| 7 working days after the para 4(1) notice | Advise which documents may be tendered by consent, whose authenticity is disputed, and the grounds of objection — para 4(2) |
| 5.00 p.m., fourth last working day | Every party other than the plaintiff delivers to the plaintiff 2 copies of all documents intended to be tendered not already specified — para 4(3) |
| 4.30 p.m., last working day before trial | Plaintiff files and serves the statement of agreed issues, a chronology of relevant events and, where warranted, a list of relevant characters — para 7(a) |
| Midday, last working day before trial | Plaintiff files two copies of the bundle of documents, duly paginated and indexed — para 4(4) |
The document bundle is due by midday on the last working day; the statement of agreed issues and chronology by 4.30 p.m. the same day. Both are the plaintiff’s responsibility.
Under para 8, documents required by paras 4(3) and 7 are to be filed by delivery to the Commercial List Clerk, and those required by para 7 to be served are to be delivered to the lawyer for each opposing party. Filing in the general registry is not compliance.
Rules 12 and 21
24 hours before the listing hearing — the applicant delivers the draft order to the associate to the Commercial List judge and to the other parties, with any consent endorsed — r 12.
14 days from the Commercial List Clerk’s notice — where the Registry listed the matter, any party may apply by motion to have the matter removed — r 21(2).
28 days from that notice — if no removal application was filed, the plaintiff shall file a motion for directions, together with a Commercial List Statement completed as to paragraphs 1, 2, 5, 6 and 7 — r 21(3).
Paragraph 3(a)
A party who fails to comply with such a direction or order may not adduce evidence to which the order or direction applies without leave of the Court.
The same discipline appears throughout Schedule B. If a report is not tendered by the party who served it and the expert is not called, no other party may put it in evidence without the leave of the Court. And a party calling an expert may not lead evidence from the expert the substance of which is not included in the report already served, without leave.
For affidavits and statements the position is the same, with one addition: new evidence may be led from the maker only with leave, except as to new matters which arise during the course of the trial.
Both para 1(h) and para 3(g): nothing in this order deprives a party of a proper objection to the admissibility of evidence. Serving a report or statement does not make its contents admissible.
And cross-examination is protected. If an expert is called as a witness any other party may use his report or any part of it in cross examination, whether or not the report was tendered, unless the Court otherwise orders — and the equivalent for affidavits and statements, whether or not that document was used in evidence by the party calling the witness.
Paragraph 6
Where a party is required to file a list of documents —
(a) until the conclusion of the hearing that party shall be under a continuing obligation to disclose any document relevant to any matter in issue;
(b) a party who becomes aware of undisclosed documents shall include and clearly identify particulars of those additional documents in a supplementary list and file and serve an affidavit specifying the reason for failure to disclose them originally;
(c) at least 7 days before the trial date each party shall file and serve a supplementary list of documents (if any) which have come into its possession since the original list, and give supplementary inspection.
Paragraph (b) requires more than a supplementary list: it requires an affidavit specifying the reason for failure to disclose. A party that finds documents late must explain why they were missed.
That obligation runs until the conclusion of the hearing — not until the trial begins.
Practical advice
- Fix the trial date first, then diarise backwards. Every Schedule B deadline is calculated from it, so a single entry in the diary is not enough.
- Get the expert instructed early. Twenty-eight days before trial is the service deadline; the report must be finished before that, and a responsive report may follow.
- Get witness statements signed page by page. Para 2 requires each page signed by the proposed witness. Chasing signatures at day 29 is a common cause of default.
- Start the bundle early. The plaintiff must file two paginated and indexed copies whose index shall indicate which documents are tendered by consent and where there is no consent to tender of a document which party intends to tender it. That index cannot be built the night before.
Sources
- National Court Rules 1983 — O 1 Div 3; O 10A rr 12, 20, 21, Sch B paras 1–8
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.