Proctor : June 2019
29 PROCTOR | June 2019 at the beginning of the trial, although any departure from the traditional approach is a matter for the trial judge. Second, if orders of this nature have not already been made, the parties must turn their minds to whether evidence in chief should be given orally or by affidavit. In proceedings started by claim, evidence will be given orally unless there is an order to the contrary.8 There is a widely held view that, in cases involving witness credibility, evidence in chief should not be given by affidavit.9 In most cases, the trial judge is likely to benefit from seeing and hearing the witnesses give their evidence first-hand. Third, the order of witnesses. This is a matter that trial counsel should contribute to as it involves questions of strategy and tactics, depending on the strengths and weaknesses of each witness. The order will also need to take into account any genuine witness unavailability. Experts in the same field should give evidence concurrently or consecutively, if possible. 10 Disagreement If there is disagreement between the parties on the likely duration of the trial, or readiness for trial, that may be addressed by the Resolution Registrar or the court. 11 When the parties cannot agree on the appropriate structure of the trial, competing trial plans may be addressed by the Resolution Registrar12 or adjudicated by the court. 13 However, in most cases, the parties should be able to resolve the trial plan amongst themselves. Risks There are two key risks to be aware of in preparing the trial plan. First, inclusion of a witness in a trial plan, followed by an unexplained failure to call that witness, may strengthen the grounds for the drawing of a Jones v Dunkel inference.14 Before identifying a witness in a trial plan, the party doing so should be confident that they will call that witness at trial. Second, if a trial plan is too ambitious and allocates too little time, the trial may not finish within the allocated days and will be adjourned part-heard. This is not only inconvenient for the court and the parties, but can create a real tactical disadvantage if the break between the adjourned trial and the resumption is significant. Notes 1 Supreme Court Practice Direction 18 of 2018 at . 2 Ibid at . 3 Available at courts.qld.gov.au/court-users/practitioners/ pre-trial-case-management-in-the-supreme-court. 4 As occurred in Byrne v People Resourcing (Qld) Pty Ltd  QSC 39 at . 5 GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (1990) 20 NSWLR 15 at 22-23 6 Above, n3. 7 For example, Uniform Civil Procedure Rules 2005 (NSW), r29.6 . 8 UCPR, r390(a). 9 Plumley v Moroney  QSC 3 at  and . 10 Supreme Court Practice Direction 18 of 2018 at (e). 11 Ibid at . 12 Ibid at . 13 For example, see Wagner v Nine Network Australia  QSC 61. 14 The inclusion of a witness in a trial plan, and an unexplained failure to call that witness at trial, was noted in Matton Developments Pty Ltd v CGU Insurance Ltd (No.2)  QSC 72 at  and -  in the context of a Jones v Dunkel submission. Kylie Downes QC is a Brisbane barrister and member of the Proctor Editorial Committee. Will LeMass is a Brisbane barrister. BACK TO BASICS Different, better. firstname.lastname@example.org schultzlaw.com.au Sunshine Coast 07 5406 7405 Brisbane 07 3121 3240 Gold Coast 07 5512 6149 Michael Callow Travis Schultz What can your client expect when you refer them to us? As a social justice law firm, we are focused on making a positive difference in people’s lives and want affordable legal services to be accessible to all. We do this by keeping our fees lower than the industry average and charge only on the government set Federal Court Scale. Because we want our clients to always get more, in the exceptional case when a cap on costs is to be applied, we cap our fees at only one third of the settlement, rather than apply the normal 50/50 rule. The best of both worlds – lower fees and experience Lower fees does not mean you have to compromise on expertise. Both Travis Schultz and Michael Callow are accredited specialists, each with over 25 years’ experience and provide a personal service everyone can access. Now that is different, better. • Cutting edge expertise, without the price tag. • Compensation and insurance experts. • No win, no pay. • No uplift fees. • No litigation lending for outlays and no interest charges.