Going to Trial

The first stages of your case involve processes designed to help you reach an agreement and narrow the issues in dispute. The vast majority of applications to the court are resolved without going to trial.

Other ways to narrow the issues in dispute

See Specific Questions.

Admissions
Parties are encouraged to make admissions in relation to facts and documents in order to reduce cost and delay. These admissions are for the purposes of the case only so the issues in dispute can be narrowed. The admission is only of the authenticity of the document or truth of the fact. Objection may still be taken to the document being admitted or the evidence of the admitted fact being received. For example, on the ground of relevance. Written notice to the other party of any admissions should be done as early as possible. For example, if admissions are made before the disclosure process, disclosure can be limited.

Request to Admit Facts (see Rule 177)
A party can serve a Notice to Admit on another party asking the other party to admit, for the purposes of the case only, that a fact is true or that a document is genuine. It cannot be used in any other proceedings, even between the same parties.

• They are usually used if the proof of the fact or document will involve significant expense which can be separately identified from the other costs of the proceedings.
• The notice must include advice to the other party that a failure to serve a Notice Disputing a Fact or Document will result in the other party being taken to have admitted that the fact is true or the document genuine.
• If the Notice to Admit makes mention of a document, the party serving must attach a copy of the document to the Notice unless the other party already has a copy, or it is not practicable.
• Even if the other party has a copy of the document, it is prudent to still attach a copy of it. If it is not practicable to attach the copy, then the Notice must identify the document and a place and time at which the document can be inspected, and the other party must produce the document at that place and time.

Practical Points

• The admission sought must be precisely expressed.
• If there is more than one fact, break the facts up into separate facts.
• Do not include secondary material or inferences as this may justify the other party failing to admit. Although the basic fact may be proved, the inference or prejudicial matter may not.
• Do not use the procedure to seek the admission of facts which can be proved easily by witnesses likely to give evidence anyway.
• A fact admitted in affidavits may be later withdrawn, so it may still be useful to use the Notice to Admit procedure.
• If the document referred to in the Notice is too lengthy to annex, part of the document may be annexed to avoid uncertainty.

Notice Disputing Fact or Document (see Rule 178)

If a party served with a Notice to Admit seeks to dispute a fact or document specified in the Notice to Admit, they must serve within 14 days after service on the party who served them a Notice Disputing the Fact or Document. If this is not done, the party is taken to admit that the fact is true or the document is genuine for the purposes of the case.

If the Fact or Genuineness is Later Proved (see Rule 178(3))

The party that served the Notice Disputing a Fact or Document may be ordered to pay the costs of proof.

Withdrawing an Admission

A party can withdraw an admission only with the court’s permission or the consent of all parties. The court may order the party to pay any other party’s costs thrown away in allowing a party to withdraw an admission.

Forms of Notice

You may wish to use the downloadable forms below.

Getting Ready for Trial

If you and the other party are unable to reach an agreement without going to trial, your case will need to proceed to a trial.

Procedural Orders

The Court will make orders and directions at a procedural hearing setting out what needs to be done before the trial. Procedural orders are instructions (sometimes referred to as directions) from the court about what each party must do and when. They are made at each stage of the court process and can also be made at the request of a party in a case. Their purpose is to ensure that the case is properly prepared for at each stage of the process so that it is resolved as quickly and cheaply as possible.

The Court may give directions such as:

• what evidence is to be filed;
• what documents are to be exchanged; and
• including your case in the ‘defended cases’ list.

Once your case is in the defended list, there will be a:

• Readiness hearing, to assess whether your case is ready for trial;
• Callover, to allocate a trial date; and
• You will have to prepare papers for the judicial officer.

Once your case is allocated a trial date, you will have to pay a non-refundable setting-down fee (unless you are exempt for some reason).

Agreement after a Trial Date is Set

Parties can resolve their matter by agreement at any time before the delivery of judgment. This includes before and during the trial. If an agreement is reached you should inform the court as soon as possible so that the court’s time is not wasted.

Formalising an Agreement

To formalise your agreement, you should file, or hand up in court, a minute of consent orders signed by each party setting out the terms of the agreement. Consent orders will be made if the judicial officer is satisfied the agreement is appropriate.

There is more information on the trial process in the Self-Represented Litigants (SRL) handbooks.

Last updated: 30-Oct-2024

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