K3 Insights

To start a proceeding in Court, you must file a statement of claim that outlines what the claims relate to, generally within 6 years of the event.

Once you have filed proceedings in Court, the other party must file a statement of defence to the plaintiff’s claim within a set period of time, usually 5 weeks.

Case management conferences

Once the key documents are filed with the Court, the case will get referred to a case management conference. A case management conference will bring the matter before a Judge at an early stage to decide on the suitable way to progress the proceeding.

Judicial settlement conferences

The parties may then be directed to a Judicial Settlement Conference. A Judicial Settlement Conference is a conference before a Judge which takes place to give the parties an opportunity to negotiate settlement of the claim. Where cases are not resolved at this stage, they go on to a second case management conference to progress towards trial.

Interlocutory hearings

An interlocutory application happens where a party asks the Court to make an order before the trial takes place. These applications usually concern a matter or Court procedure or a request for an immediate remedy to prevent further harm from being caused while the parties wait for trial.  These applications go to short hearings, which are based on sworn written statements. Witnesses are usually not called to the hearing, but can be cross-examined. Parties will give their submissions on the law and facts and the Judge will give an interlocutory decision on the matter. 

Mode of trials

Short trial

Short trials are reserved for matters that can come to a hearing quickly, issues are not complex, a modest amount is at stake, or the trial is not likely to exceed 1 day. Witnesses will give evidence in a written form, known as an affidavit, that is to be sworn on oath or affirmed. Witnesses are not required to be called to give evidence in Court.

Simplified trial

A simplified trial is where proceedings are likely to not exceed 3 days, involve some degree of complexity, involve more than a modest amount of money, or more than one expert witness giving evidence. Witnesses will give evidence in a written form, known as an affidavit, that is to be sworn on oath or affirmed. Witnesses are not required to be called to give evidence in Court, unless they are being cross-examined.

Full trial

A full trial is where the claim is more complex, involves more parties and involves large sums of money. Witnesses will be called to give evidence in Court and will go through a process called cross-examination where they will be questioned and tested on the evidence they have provided.

What happens at a trial

Opening submissions

The parties must prepare opening submissions which summarises the factual and legal issues, the arguments raised and the evidence they intend to call. The plaintiff will present their submissions first and will proceed to call their first witness. Once the plaintiff’s case has been concluded, the defendants will present their submissions and open their case.

Process for giving evidence

Examination in chief: Examination in chief is where the witness is called to give evidence in person. Sometimes witnesses will be allowed the opportunity to read their evidence in Court. Other times, witnesses will be lead through their evidence by the lawyer and will be asked questions that support the case. The questions must be open ended and must not lead or suggest an answer.

Cross examination: Cross examination is where the opposing lawyer questions the witness. The purpose of cross examination is to test the evidence and can be to discredit the witness, highlight inconsistencies in evidence, or have the witness admit facts not contained in their evidence. The questions can be leading and are designed to challenge the other side’s case.

Re-examination: Once the witness has been cross examined by the opposing lawyer, the lawyer can choose to question their own witness again to clarify points arising out of cross-examinations.

Closing submissions

The parties must prepare closing submissions which highlights the key features of their case and the evidence that supports their case. Usually, the defendants will present their submissions first and the plaintiff will be able to close the entire hearing.

The decision

After hearing opening submissions, evidence and closing submissions the Judge will make a determination and give their decision on the matter.

The Judge can decide to give an oral determination which can be given immediately after the plaintiff’s closing submissions or can decide to reserve their determination which will be given at a later date in a written form.