REPEALED Practice Note No.79 - Common Law Division
Date:
11/18/1993
PRACTICE NOTE NO 79
COMMON LAW DIVISION
Country Proceedings Involving Sydney Expert Witnesses
1 The purpose of this practice note is to ensure that, so far as is practicable, the hearing of proceedings set down for trial at country sittings are concluded at the country sittings.
2 It has been found that the practice of transferring part-heard proceedings from the country to Sydney, to meet the convenience of Sydney expert witnesses, has the effect of disrupting the existing arrangements in Sydney and causing unnecessary not reached markings. Further, the parties to the country proceedings gain an unfair advantage over parties to proceedings in the Sydney list, as country proceedings are normally heard much earlier than Sydney proceedings yet Sydney proceedings are delayed further to enable the country proceedings to continue.
3 Country proceedings continued in Sydney thus combine the convenience of a local hearing for local witnesses and a Sydney hearing for Sydney witnesses with the early hearing of a country listing, the latter advantage being obtained at the expense of Sydney proceedings.
4 In order to rectify this situation, the following practice will be adopted at initial call-overs held after 1 January 1994 for country sittings .
5 Each party for whom a solicitor is acting must be represented at the call-over by counsel or a solicitor with full knowledge of the case.
6 Where the proceedings are to be tried without a jury, each party will be required to:
(a) identify any Sydney expert witnesses whom that party anticipates it will call to give oral evidence; and
(b) advise in respect of each such witness:
(i) that the party has asked the witness for particulars of availability to give evidence at the town where, and during the period when, the sittings are to be held;
(ii) particulars of the witness's stated availability; and
(iii) whether the party is prepared to rely upon a subpoena to require the witness to attend, should it prove necessary to call the witness at the sittings otherwise than in accordance with the witness's stated availability.
7 At the call-over the Court will fully explore whether the attendance by each Sydney expert witness to give evidence is necessary or whether some alternative can be agreed upon, such as appropriate admissions or the tender of medical reports without the witness being required to attend for cross-examination .
8 Unless an order to the contrary is made, the proceedings will be heard entirely at the country sittings, in which case:
(a) the Court will normally be prepared to adjourn the proceedings part-heard in order to allow a Sydney expert to give evidence later at the country sittings, if such a course is necessary and reasonable in all the circumstances; and
(b) if it proves impracticable to call a witness to whom paragraph 6(a) applies at the country sittings - the Court will not be prepared to adjourn the proceedings part-heard to Sydney to allow the expert to give evidence, and the proceedings will normally be concluded without the evidence of the witness, unless the Court is satisfied that circumstances have arisen which make such a course necessary and reasonable in all the circumstances.
9 If an order is made that the proceedings be heard entirely in Sydney, they will be heard no earlier than if they had been originally set down for trial at Sydney.
10 An order that the proceedings be heard partly at the country sittings and partly in Sydney will only be made if the Court is satisfied that special circumstances (other than the convenience of a witness) exist.
11 An application made after the call-over for an order for proceedings to be heard partly in the country and partly in Sydney must be made to the Judge who is to preside at the sittings.
12 Where the call-over is conducted by a Registrar, the Registrar will refer to the Judge who will be presiding at the sittings any questions which the Registrar has been unable to decide at the call-over.
