By the time a case reaches trial the parties have exchanged pleadings, particulars and discovery. Much is no longer really in dispute. The Statement of Agreed and Disputed Facts and Legal Issues records what remains.
Schedule B
The form prescribed by Schedule “B” to the Listings Rules 2005 — reproduced as Rule 9A of Order 10 of the National Court Rules 1983 — is headed Statement of Agreed & Disputed Facts & Legal Issues, and has three parts:
A. Statement of Agreed Facts — “The parties agree on the following facts”.
B. Statement of Disputed Facts for Determination — “The following facts are disputed”.
C. Statement of Agreed Legal Issues for Determination — “The legal issues for determination are as follows”.
It is dated and signed by the lawyer or party for the plaintiff and the lawyer or party for the defendant, with the name appearing below each signature.
Unlike a pleading, this is prepared and signed by both sides. It is not an opportunity to argue the case; it is a record of common ground and of what is left.
In practice one party circulates a draft, the other marks it up, and the differences are negotiated. Where agreement cannot be reached on a particular fact, it belongs in Part B.
Twice in the listings process
Listings Rules rule 7(4)(q) — at the mention the Court considers whether parties wish to file statement of agreed and or disputed facts and issues for trial.
Rule 9(2)(e) — at the pre-trial conference the Court shall ascertain filing of Statement of Agreed and Disputed Facts and Legal Issues in the form in Schedule “B”.
Rule 7(4)(q) asks whether the parties wish to file such a statement. But rule 9(2)(e) has the Court ascertain the filing at the pre-trial conference — and the pre-trial conference is where the trial date is fixed.
A party who has not engaged with the document by then is not assisting the Court to fix a realistic trial date, and can expect that to be said. Where the Court has given a direction to file it at the directions hearing, non-compliance is a ground for summary disposal under rule 15(2)(c).
What it does
| Part | Consequence |
|---|---|
| A — agreed facts | No evidence need be called. Witnesses whose only purpose was to prove those facts need not be summoned |
| B — disputed facts | Defines what the evidence must actually address, and therefore the number of witnesses and the length of their evidence under rule 9(2)(d) |
| C — legal issues | Defines what the submissions must address, and what an extract of submissions under rule 9(2)(h) should cover |
A trial in which twenty facts are agreed and three are in dispute is a very different trial from one in which everything must be proved. It is shorter, cheaper, and easier to decide.
It also has a costs dimension. A party who refuses to admit facts that were never seriously contestable, and forces the other side to prove them, can expect that to be reflected when costs are dealt with under Order 22.
How it fits with the Rules
Order 9 Rule 29 — notice to admit facts. If a fact is not disputed within 14 days, it shall be admitted. This is the formal mechanism, and it operates whether or not the other side co-operates.
Order 9 Rule 28 — voluntary admission. A party may by notice admit facts in favour of the other party, but for the purpose of the proceedings only.
Order 9 Rule 31 — documents. Where a list of documents is served and inspection permitted, authenticity is admitted unless disputed within 14 days.
The statement records agreement for the purposes of the trial. Where you need the certainty of an admission that binds — and that can found judgment on admissions under Order 9 Rule 30 even before trial — serve a notice to admit facts as well.
Conversely, an admission once made can be withdrawn only with the leave of the Court. Be sure before you agree a fact into Part A.
The other pre-trial document
The Court also considers preparation and compilation of a pleadings book as required by Order 10 Rule 8, which contains, among other relevant documents, the Originating Process, Statement of Claim, Defence (and Cross-Claim if any), Reply (and Defence to Cross-Claim if any), Reply to Defence on Cross-Claim, and Further and Better Particulars.
Order 10 Rule 8 itself requires the plaintiff, within seven days after the cause or issue has been set down for trial, to deliver to the Registrar two typed copies of the whole of the pleadings, one of which shall be for the use of the Court at the trial.
At the pre-trial conference the Court will confirm correctness of the Pleadings Book under rule 9(2)(b).
- The pleadings book, complete and correct.
- The Schedule B statement, signed by both sides.
- A realistic view of witnesses and the length of their evidence.
- Any witness summonses needed — the Court can issue them under rule 9(2)(g).
- Any notices under sections 34 and 35 of the Evidence Act, which the Court may direct be filed and served under rule 9(2)(f).
- Instructions on translation and the mode of giving evidence, both checklist items at the mention.
The Evidence Act (Chapter 48) is not available on PacLII at the time of writing. The requirement to file and serve notices under sections 34 and 35 comes from rule 9(2)(f) of the Listings Rules.
Sources
- National Court Rules 1983 — O 9 rr 28–31; O 10 rr 8, 9A (Listings Rules 2005 rr 7, 9, 15, Sch B); O 22
- Evidence Act (Chapter 48) — ss 34, 35; not available on PacLII
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.