Order 10 Rule 12 of the National Court Rules 1983 deals with the party who does not appear when the trial is called on.
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 for trial, or unless such other steps are taken as the Court may direct; or
(b) proceed with the trial generally or so far as concerns any claim for relief in the proceedings; or
(c) adjourn the trial.
The rule applies whichever side is missing. An absent plaintiff risks the claim being dismissed or the trial vacated with costs; an absent defendant risks the plaintiff proving the case unopposed.
“On terms” means costs almost invariably follow. A trial date wasted is expensive for everyone, including witnesses who travelled.
Where the Court proceeds under paragraph (b), the party present must still prove their case. The trial runs under Order 10 Division 2 — the beginning party opens, calls evidence, and closes. Nothing is admitted merely because the opponent is absent.
That is a different position from default judgment, which rests on a failure to respond to the writ rather than on a failure to appear at trial.
Rule 12(2) and (3)
(2) Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial a verdict is given or a finding or assessment is made, the Court, on motion by that party, may, on terms, set aside or vary the verdict, finding or assessment, and may give directions for the further conduct of the proceedings.
(3) A motion under sub-rule (2) must be made on notice and the notice must be filed and served not more than seven days after the giving of the verdict or the making of the finding or assessment.
The clock runs from the giving of the verdict or the making of the finding or assessment, not from the date the absent party learns of it. A party who was absent because they were unwell, or in another province, or misinformed of the date, must act at once.
Both filing and service must occur within the seven days. The motion must be on notice — it cannot be made ex parte.
Where the seven days have passed, the application under Rule 12(2) is no longer available. The remaining possibilities are an extension of time under Order 1 Rule 15 — which the Court may grant after the time has expired — or an appeal. Neither is as straightforward as moving in time.
- Why you were absent — deposed to by someone with direct knowledge, with supporting material such as a medical certificate or travel record.
- That you have a case — the defence or the claim you would have advanced, set out with the facts.
- That you moved promptly — which the seven-day rule largely determines.
- What directions you seek for the further conduct of the proceedings, which sub-rule (2) expressly contemplates.
Expect the order to be made on terms — ordinarily payment of the costs thrown away, including the other side’s wasted trial costs.
Absence before trial
The Court may summarily determine a matter on application by a party, on its own initiative, or upon referral by the Registrar — and may do so —
a. for want of prosecution since filing the proceedings or since the last activity on the file; or
b. for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or
c. for non-compliance of any order or directions previously made at any of the listing processes; or
d. under any of the grounds in Order 12 Rule 40 and Order 8 Rule 27; or
e. on any competency ground relating to non-compliance with the Rules.
Ground (b) is specific: failure to appear at any of the listing or directions hearing by a party or his lawyer. Attendance is not optional — and under rule 14 the party must attend with the lawyer who will appear at the trial.
See directions hearings and dismissal for want of prosecution.
Where the Registrar refers a matter for summary determination, rule 15(3) requires a notice in Schedule “D” giving the grounds, thirty days to respond, and a return date. In appropriate cases the Registrar may publish the notice letter in the media. Any response, written or verbal, is placed on the file; on expiry of the thirty days the file goes to the judge, who may determine the proceedings summarily or give directions.
So a party whose file has gone quiet may receive a show-cause notice rather than simply losing the case without warning.
Practical steps
- Tell the Court and the other side as early as possible. An application to adjourn made in advance is a different matter from an unexplained absence.
- Remember the standard. Under the Listings Rules, 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.
- Send someone properly briefed. Where the lawyer with carriage instructs another to appear, the lawyer must be fully briefed.
- Check the notice. Under Order 10 Rule 9 the Registrar gives notice of trial in Form 41 not less than 14 days before to each party with an address for service who was not present when the matter was set down; and under the Listings Rules the Trial List is circulated at least seven days before.
- Keep your address for service current. Under Order 6 Rule 7(3) and (4), a change must be filed and served on each party on the date of filing. Most cases of genuine ignorance of a trial date trace back to this.
Sources
- National Court Rules 1983 — O 1 r 15; O 6 r 7; O 8 r 27; O 10 rr 9, 12, 13, 9A (Listings Rules 2005 rr 13–15, Sch D), Div 2; O 12 rr 40, Div 3
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.