Order 10 Division 2 of the National Court Rules 1983 governs the conduct of a civil trial. Unless the Court orders otherwise, the trial shall be by a single Judge.
Rule 10 — the beginning party
(a) Where the burden of proof on any issue lies on the plaintiff, he shall be the beginning party and the defendant shall be the opposite party; and
(b) where the burden of proof on all the issues lies on the defendant, he shall be the beginning party and the plaintiff shall be the opposite party.
Note the asymmetry. The plaintiff begins if the burden lies on them on any issue. The defendant begins only if the burden lies on them on all the issues.
The defendant therefore begins only where the plaintiff’s case is entirely admitted and the whole dispute turns on affirmative defences — a defence of performance, release, limitation or illegality under Order 8 Rule 14, for instance, with nothing else in issue.
Rule 13
(1) The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.
(2) Subject to that, the order in Rule 13 applies where the only parties are one plaintiff and one defendant and there is no cross-claim; and in any other case it applies subject to such modifications as the nature of the case may require.
(3) The beginning party may make an address opening his case and may then adduce his evidence.
(4) Where, at the conclusion of the beginning party’s evidence, no document or thing has been admitted in evidence on tender by the opposite party, the opposite party may elect to adduce evidence or not to adduce evidence.
| Stage | Opposite party calls no evidence — r 13(5) | Opposite party calls evidence — r 13(6) |
|---|---|---|
| 1 | Beginning party’s opening address | Beginning party’s opening address |
| 2 | Beginning party’s evidence | Beginning party’s evidence |
| 3 | — | Opposite party’s opening address |
| 4 | — | Opposite party’s evidence |
| 5 | Beginning party closes | Opposite party closes |
| 6 | Opposite party states his case | Beginning party closes |
If the opposite party calls no evidence, they address last — sub-rule (5). If they do call evidence, the beginning party addresses last — sub-rule (6).
That is a real tactical consideration. A defendant with a strong legal argument and weak witnesses may prefer to call nothing and keep the final address.
Note the condition in sub-rule (4): the election is available only where no document or thing has been admitted in evidence on tender by the opposite party. A defendant who tenders a document during the plaintiff’s case has already adduced evidence, and loses the election.
Rule 14 — judgment by direction
(1) Where the plaintiff is the beginning party, a defendant may, at any time after the conclusion of the evidence for the plaintiff in his case in chief, move for an order directing the entry of judgement for that defendant, generally or on any claim for relief, on the ground that, on the evidence given, an order directing the entry of judgement for the plaintiff could not be supported.
(2) Where the ground is established, the Court may direct the entry of judgement for the defendant accordingly.
(3) Where the motion is refused, the defendant may not, without leave of the Court, adduce evidence in the proceedings.
A defendant who submits there is no case to answer and fails is ordinarily shut out from calling evidence. The application is therefore made only where the defendant is confident the plaintiff’s evidence, taken at its highest, cannot support judgment.
The Court may grant leave, but a defendant should not count on it. Where the defence has real evidence to call, the safer course is to call it and argue the weakness of the plaintiff’s case in closing.
Rule 12
(1) If, when a trial is called on, any party is absent, the Court may, on terms — (a) order that the trial be not held unless the proceedings are again set down or other steps are taken; (b) proceed with the trial generally or as to any claim; or (c) adjourn the trial.
(2) Where the Court proceeds in a party’s absence and a verdict, finding or assessment is made, the Court may, on motion by that party, on terms, set aside or vary it and give directions for the further conduct of the proceedings.
(3) That motion must be made on notice, filed and served not more than seven days after the verdict, finding or assessment.
Sub-rule (3) is one of the shortest periods in the Rules. A party who was absent and wants the result set aside must move within seven days. See absence from trial.
Rule 11, and the Listings Rules
(1) Where proceedings have been set down for trial for a specified date, the trial may be held on that or any later date.
(2) Notwithstanding that, the Court may make such orders as it thinks fit for fixing the time and place of trial.
Under the Listings Rules 2005, a trial once fixed shall not be adjourned except by leave of the Court upon sufficient cause being shown; and if adjourned it goes to a fixed date within the circuit month or to the earliest available directions hearing or pre-trial conference.
The trial itself shall proceed on the date fixed at the Pre-trial conference, and may be conducted in accordance with the directions and orders made at or before the fixing of the trial date — which is why the pre-trial conference matters so much. Directions given there about witnesses, the statement of agreed and disputed facts, the mode of evidence and translation shape how the trial actually runs.
Order 11 governs summonses to witnesses, depositions and affidavits. Where a party wishes to rely on answers to interrogatories, they must be tendered — and under Order 9 Rule 26 the Court may require connected answers to be tendered with them.
Sources
- National Court Rules 1983 — O 8 r 14; O 9 r 26; O 10 rr 2, 9A (Listings Rules 2005 rr 12, 13), 10–14, Div 4; O 11
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.