Chapter 13 – Trials and other hearings
- Part 1 – Listing applications for hearingPart 2 – Setting trial dates
-  Application of pt 2
-  Setting trial dates
-  Request for trial date
-  Trial expedited
-  Dispensing with signature on request for trial date
-  Leave required for steps after request for trial date
-  Application of pt 3
-  Jury
-  Trial without jury
-  Changing mode of trial
-  View by court
-  Definition for pt 5
-  Order for decision and statement of case for opinion
-  Orders, directions on decision
-  Disposal of proceedings
-  Form and content of separate question
-  Definition for pt 6
-  Application of pt 6
-  Proposal for decision without oral hearing
-  Procedure for making application
-  Court may decide that decision without an oral hearing is inappropriate
-  Respondent’s response
-  Applicant’s reply
-  Respondent’s right to require oral hearing
-  Applicant’s right to abandon request for decision without an oral hearing
-  Concise written submissions
-  Further information
-  Order
-  Application of pt 7
-  Assessors
-  Special referee
-  Procedure before special referee
-  Submission of question to court
-  Report of special referee
-  Use of opinion, decision or findings
-  Remuneration of special referee and assessor
-  Conditional order
-  Defendant’s default or summary decision
-  Assessment
-  Directions
-  Certificate of damages
-  Damages to time of assessment
-  Application of pt 9
-  Application of simplified procedures [review – 1 dc case]
-  Simplified procedures
-  Hearing and deciding claim
- [522A] Application of div 2A
- [522B] Definitions for div 2A Subdivision 2 – Filing employment claims
- [522C] Filing employment claim Subdivision 3 – Conciliation of employment claims
- [522D] Suspension of conciliation process if application to court
- [522E] Conciliation certificate
- [522F] Record of conciliation agreement
- [522G] Abandonment of conciliation Subdivision 4 – Hearing of employment claims
- [522H] Notice of intention to defend employment claim
- [522I] Ending employment claim proceedings early
- [522J] Setting hearing date for employment claim
- [522K] Procedure for hearing of employment claim
- [522L] No cross claim in proceeding for employment claim
- [522M] Failure to appear in an employment claim Subdivision 5 - Miscellaneous
- [522N] Particular rules do not apply to employment claims
- Division 1 – Mode of trial
- Division 3 - View
- Division 1 - Application
- Division 2 – Simplified procedures
- Division 2A – Employment claimsSubdivision 1 - Introduction
 Application of Pt 1 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
 List of applications go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
 Estimate of hearing time go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
 Adjournments go to top
 Application of pt 2 go to top
 Setting trial dates go to top
 Request for trial date go to top
A statement in a request for trial date could not serve as an abandonment of a previous election made in the pleadings as to the mode of trial:,  (White J), citing  2 Qd R 679, 680.
Rule 467 does not apply in respect of the hearing of interlocutory applications:,  (Fraser JA, Holmes JA and Muir JA agreeing).
 Trial expedited go to top
In,  Applegarth J determined that it was appropriate to order a trial to be expedited in circumstances where the plaintiff was of ill health and would be a key witness in the trial.
 Dispensing with signature on request for trial date go to top
An application seeking dispensation of the defendant’s signature will plainly be premature where an amended defence to an amended statement of claim has not yet been filed:, p.2 (Robin AJ).
In circumstances where the defendant is yet to deliver an expert report they intended to rely upon, it was premature to dispense with the defendant’s signature on the request for trial date:,  (White J).
The defendant’s delay is relevant to the exercise of the Court’s discretion under r 469:,  (Fryberg J).
 Leave required for steps after request for trial date go to top
There is an overlap between r 470 and r 380 in respect of the amendment of pleadings following a request for trial date being issued. In those circumstances, r 380 should be applied:, p.4 (de Jersey CJ, Davies JA and Thomas JA agreeing).
Rule 470 applies to any interlocutory application that is sought to be made following the request for trial date having been filed:,  (McMurdo J).
Division 1 – Mode of trial
 Application of pt 3 go to top
In Queensland there is no common law right to trial by jury. The right to seek a trial by jury is governed by Chapter 13, Part 3, Div 1 of the UCPR:,  (Margaret Wilson AJA).
 Jury go to top
Recourse to r 5 cannot detract from or displace the continued existence of the right to a jury trial contained in r 472:,  (Mullins J).
A plaintiff has the right in a medical negligence claim to elect for a jury trial. When a plaintiff has so elected, significant weight should attach to preserving the plaintiff’s right:,  (Mullins J).
The right to a jury trial is a procedural right governed by the UCPR, not a common law right:,  (McMurdo P). It is a right conferred by the rules of Court: , - (Mullins J).
A court will consider a party to have waived their procedural right to a trial by jury if they do not pay the prescribed jury fees before the trial begins as mandated by s 65 Jury Act 1995 (Qld):,  (McMurdo P),  (Chesterman JA),  (Margaret Wilson AJA).
Judges should not lightly remove a civil litigant’s right to trial by jury. First, it is a significant right, although a procedural one. Second, there is a public interest in maintaining public participation and public confidence in the justice system through the use of juries in civil cases:,  (McMurdo P),  (Margaret Wilson AJA).
Where a litigant is wrongly deprived of his or her chosen mode of trial, the proper relief is that a new trial be ordered, but only where the litigant demonstrates some substantial wrong or miscarriage of justice:,  (McMurdo P),  (Chesterman JA),  (Margaret Wilson AJA agreeing).
Discretion to dispense with trial by jury
By its terms, r 474 provides that the discretion to order a trial without a jury only arises where the matters set out in r 474(a) and (b) are present:,  (Margaret McMurdo P),  (Margaret Wilson AJA). Accordingly, the court has a discretion to dispense with trial by jury if the trial:
- requires a prolonged examination of records; or
- involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury: ,  (Margaret McMurdo P); ,  (Ann Lyons J), citing  QSC 205,  (Boddice J).
Rule 472 is not to be construed so that it confers a power to dispense with trial by jury where an issue which is not technical or scientific or complex is likely to be presented in an incomprehensible way:,  (Margaret McMurdo P);  (Margaret Wilson AJA), citing  QSC 101,  (Daubney J).
The consideration that trial by jury will necessarily be longer and more expensive than a trial by judge alone does not make a jury trial inconvenient for the purpose of r 474:,  (Chesterman JA), citing , (Mullins J).
The word “conveniently” in r 474 directs attention to whether it is convenient for the effective and efficient administration of justice. The efficient administration of justice may be rendered less than convenient where:
- there is a physical problem of handling, in the confines of a jury box, large bundles of documents;
- the number and complexity of documents will prolong the trial if held before a jury;
- the expense involved in the trial will be significantly increased because of trial by jury; and
- there is a risk a jury may not sufficiently understand the issues on the documents so as to be able to resolve them: ,  (Ann Lyons J), citing  QSC 205,  (Boddice J).
The discretion is to be exercised having regard to the particular features of the case, and the provisions of the Jury Act 1995 and the UCPR:,  (Boddice J).
 Trial without jury go to top
 Changing mode of trial go to top
The discretion under r 475 is to be exercised on the basis that a court has a discretion to order a trial by jury, if satisfied the proceeding could appropriately be dealt with by jury:,  (Boddice J).
Rule 475(1) provides an unfettered discretion to change the mode of trial in specified circumstances. The exercise of that discretion is not subject to r 475(2), which provides a separate power for the court, of its own volition, to order trial by jury in specified circumstances. The existence of a separate power for the court, of its own volition, to order trial by jury is compatible with the power given to the court in r 474, to order that a trial be held by judge alone rather than by a jury in specific circumstances:,  (Boddice J), citing  1 Qd R 500.
The discretion to order trial by jury is to be exercised having regard to all of the circumstances of the case. Relevant factors include, but are not limited to, the nature of the proceeding, the issues in dispute, whether the plaintiff has elected for a trial by jury, whether there is likely to be extensive expert evidence and whether any trial is likely to be unduly and unnecessarily lengthened by an order that it be tried by jury:,  (Boddice J).
Rule 475(2) is concerned with circumstances where a judge, on the judge’s own initiative, is minded to direct trial by a jury on an issue of fact, rather than where an application for trial by a jury has been made by a party:, 501 (Byrne J).
It is not necessary before an order may be made for trial by a jury that the applicant establish that there is an issue of fact to be tried which could more appropriately be tried by jury. It is enough if it is shown that a jury could appropriately deal with the matter:, 502 (Byrne J).
Division 2 – Proceedings at trial
 Default of attendance go to top
Pursuant to the discretion of the court under r 476(1), if the defendant does not appear when the trial starts, the judge may direct that the trial proceed by way of affidavit evidence:, p. 1 (Jones J); ,  (Daubney J).
The meaning of “appearance” under r 476(2) includes an appearance by telephone:,  (Jerrard J).
Although r 476(1) permits the plaintiff to adduce evidence to establish an entitlement to judgment if the defendant does not appear when the trial starts, that may only occur “in the way the court directs”. It should therefore not be thought that a plaintiff has an automatic right to establish an entitlement to judgment under that rule. Thus, in a case where it appears to the court that a defendant has not received notice of the trial, the appropriate course would be to adjourn the trial to enable such notice to be given to the defendant, and the same observation may be made in connection with r 476(2) in the case of a plaintiff who fails to appear. It follows that, before giving directions permitting a plaintiff to call evidence to establish an entitlement to judgment in the absence of the defendant, the court must first be satisfied that such a course is, in all of the circumstances, appropriate. At the minimum, the court should direct the bailiff to leave the courtroom to call out the name of the absent defendant three times and, if there is still no appearance, it may then be necessary for evidence to be received as to the manner in which notice of trial was provided to the defendant or other relevant information including any enquiries which have been made as to the defendant’s whereabouts:,  (Burns J).
If the court is satisfied that it is appropriate to proceed under r 476(1), the pleadings set the limits of what may be proved against an absent defendant to establish an entitlement to judgment. For that reason, a plaintiff proceeding under this rule can go no further in proof of the claim than to call evidence to support the allegations which are already contained in the statement of claim. But, as to that, allegations which are admitted in the pleadings, either expressly or by operation of the UCPR, will of course not need to be proved; it is only that part of the pleaded case which is in issue on the pleadings which needs to be established by evidence. That may be achieved in the usual way through oral and documentary evidence or, if the court considers it expedient, a direction may be made pursuant to r 390 that evidence be received by affidavit:,  (Burns J).
It is important to keep in mind when proceeding in accordance with r 476(1) that the contents of any filed defence cannot be ignored despite the feature that the defendant has failed to appear at the trial. As such, the defence must be considered alongside the statement of claim and any reply in order to determine the issues to be tried in the defendant’s absence. Once identified in that way, the issues will then be determined by the court in accordance with such evidence as may be called by the plaintiff. That, of course, does not mean that the plaintiff will or must succeed on all such issues, but it will mean that an absent defendant will likely fail on any issue in relation to which he, she or it has a burden of proof:,  (Burns J).
Where a counterclaim is advanced on the pleadings and the defendant does not appear, the position is a little different. A defendant advancing a counterclaim is really in the position of a plaintiff for the purposes of that claim and, as such, r 476(2) may be apt to confer an entitlement on the plaintiff in the principal claim to dismissal of the counterclaim. Even if that is not so, it cannot be doubted that the court has inherent power to dismiss a counterclaim where a defendant fails to appear to prosecute it. This is for the obvious reason that such a defendant should be taken as having passed up the opportunity to support that claim:,  (Burns J).
The court retains a discretion to set aside or vary any judgment or order obtained by a plaintiff pursuant to r 476(1). However, there is nothing which is provisional in character about a judgment entered in that way; it operates as a final judgment of the court:,  (Burns J).
 Adjournment go to top
Division 3 - View
 View by court go to top
The general rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence:,  (Atkinson J), citing , 313 and 315.
Sometimes, such as in cases of passing off, or otherwise when what appears to the eye is the ultimate test, the Judge, looking at the exhibits before him or her or examined by him or her as if they were exhibits in the case, and also paying attention to the evidence adduced, can apply his or her own independent judgment notwithstanding what witnesses have deposed to on the particular point:,  (Atkinson J), citing , 313 and 315.
It may be accepted that r 478 deals with views in the common law sense, even though it calls them “inspections”:,  (Flanagan J), citing (2007) 235 CLR 521, 573  (Heydon J).
The matters identified in s 53(3)(a) to (e) of the Evidence Act 1995 (NSW), which are generally reflective of the common law, inform the exercise of discretion under 478:,  (Flanagan J). Section 53(3) of the Evidence Act 1995 (NSW) provides:
“(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:
(a) whether the parties will be present,
(b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence,
(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,
(d) in the case of a demonstration — the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,
(e) in the case of an inspection — the extent to which the place or thing to be inspected has materially altered.”
There is a difference between “views”, “demonstrations” and “reconstructions”. A view is an inspection of a scene or object without seeing it in operation or witnesses providing further explanation of the events; a demonstration is a view incorporating an explanation by a witness of the incident in question or a demonstration of the object in operation; and a reconstruction goes further still and is an attempt to recreate the incident (whether in full or part) with witnesses and testimony:,  (Flanagan J), citing (2007) 235 CLR 521.
Despite reference in r 478 to “inspections”, “views” have their common law meaning and whilst the rule does not make reference to a “reconstruction”, it can be accepted that in some cases a demonstration can have elements of a reconstruction:,  (Flanagan J).
Where a demonstration is proposed, an important factor in the exercise of discretion as to whether to order a view is whether the parties agreed to that course of action, since it may be assumed that they are implicitly agreeing that the demonstration will be sufficiently equivalent to the event in issue:,  (Flanagan J).
A demonstration may include the operation of a machine that is directly concerned with the subject of the litigation:,  (Flanagan J).
 Application of pt 4 go to top
 No pleadings go to top
 Directions go to top
 Definition for pt 5 go to top
It is not the court’s function to determine questions on a hypothetical basis under Part 5, Chapter 13 of the UCPR:,  (Wilson J).
 Order for decision and statement of case for opinion go to top
Matters to be taken into account
Rule 483 provides for the Court to make an order for a question to be decided separately and before the trial of the proceeding. If such a question is “ripe” for preliminary determination, then it may be appropriate to make an order pursuant to r 483(1):,  (Applegarth J), citing  QSC 361, .
The ultimate question to be determined on an application under r 483 is whether the making of the order is “just and convenient” and this must take into account the nature of the judicial process:,  (Jones J), citing (1999) 198 CLR 334, .
The factors which would tend to support the making of an order pursuant to r 483 include any contribution to the saving of time and cost by substantially narrowing the issues for trial, or even leading to the disposal of the action, or contributing to the settlement of litigation:,  (Alan Wilson SC DCJ), citing (1991) FCA 718.
An order under r 483 will not be appropriate in many circumstances, including where there are disputed questions of fact:,  (Applegarth J), citing (1999) 198 CLR 334 at –.
The possibility of an early settlement of the litigation if an order under r 483 is granted is a relevant consideration in considering whether to make an order under r 483:,  (Applegarth J).
The fact that a party may at another stage of a proceeding exercise its rights of appeal in respect of an interlocutory process has nothing to do with the proper exercise of the discretion under r 483:,  (Daubney J).
Stated case procedure – should ordinarily not be used
The stated case procedure should not be adopted in the ordinary case. The fundamentally important role of the Trial Division in adjudicating upon disputes before it should not be undermined by too frequent adoption of this procedure, and that holds true even where there is no material factual dispute:, - (Fraser JA, de Jersey CJ and Muir JA agreeing).
Interaction with section 118 of the District Court of Queensland Act 1967 (Qld)
The resolution of a separate question of contractual liability under r 483 amounts to a “judgment” within the meaning of s 118(3) of the District Court of Queensland Act 1967, which includes a “decision or determination” of the court:, - (Keane JA).
 Orders, directions on decision go to top
The separate determination of a question under r 484 has a final effect.,  (Philip McMurdo J); , - (Keane JA).
Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. The parties to the suit are thus bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence:,  (Philip McMurdo J), citing (1999) 198 CLR 334, 360.
 Disposal of proceedings go to top
Whether a claimant, who has failed to specifically articulate in the originating process the relief which is ultimately sought, is precluded from obtaining that relief will depend upon the individual circumstances of the case. A pivotal consideration is fairness. After the determination of a separate question, it may be appropriate to make the orders which inevitably flow from that decision: Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd (No 2)  QSC 133 (Henry J) at .
 Form and content of separate question go to top
The court has a wide discretion whether to order the separate determination of questions, and the contemporary approach is to do so where questions can conveniently be so decided, even though this may not necessarily resolve the whole dispute:,  (Wilson J), citing  1 Qd R 287, 288.
If a preliminary question is one that involves mixed fact and law, then it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined:,  (Wilson J), citing (1999) 217 ALR 495,  (Branson J).
 Definition for pt 6 go to top
 Application of pt 6 go to top
 Proposal for decision without oral hearing go to top
The effect of r 489 is that, if none of the exceptions listed in that rule applies, the Court must decide the proceeding without an oral hearing:,  (Fryberg J).
The procedure in r 489 is particularly suited for commonplace applications, such as an application for substituted service or an application by solicitors seeking leave to withdraw as the solicitors on the record for a party. These are the types of application where the requirements for obtaining the particular order are well settled and the order is usually made on generally standard terms. However, the procedure is not an appropriate one where there are issues of complexity and the judge will benefit from exploring the relevant issues with the parties:, - (Mullins J).
 Procedure for making application go to top
Chapter 13, Part 6 of the UCPR provides for the determination of an application on the papers without an oral hearing. Because of the potential interference with the principle of procedural fairness that a litigant is entitled to know the case against him or her and to be heard before a determination is made, there are detailed and mandatory steps to be taken if this process is invoked. The application must be in the approved form and accompanied by a draft order and written submissions in support. The draft order and written submissions should be served with the application and affidavit material:,  (Wilson J).
If the mandatory requirements for service under r 490 are not met, then an application for a decision on the papers without a hearing must fail:,  (Wilson J).
The requirement under r 490(1)(b) that the application must be accompanied by a draft order and written submissions and support requires those documents to be served, as well as filed:,  (Horneman-Wren SC DCJ).
The failure of the applicant to serve a copy of the draft order on either the respondent or those persons specifically referred to in the application ought not be considered as a mere procedural irregularity under r 371(1):,  (Horneman-Wren SC DCJ).
 Court may decide that decision without an oral hearing is inappropriate go to top
It will be inappropriate to decide a case on the papers in circumstances where a judge will be assisted in exploring the relevant issues with the parties during the course of a hearing:,  (Mullins J).
 Respondent’s response go to top
There is nothing in r 492 requiring that a written submission of the respondent be in a separate document. The obligation that the respondent “file and serve” on the applicant the response suggests it should be a document which is in conformity with the practices of the registry. Ordinarily, letters are not documents capable of being filed. However, undue technicality is not encouraged by r 5, and a letter that plainly seeks to make responding submissions can satisfy the rule:,  (White J).
If a respondent wishes to put evidence before the court as provided for in r 492 the proper way to do so is by affidavit:,  (White J).
 Applicant’s reply go to top
 Respondent’s right to require oral hearing go to top
 Applicant’s right to abandon request for decision without an oral hearing go to top
 Concise written submissions go to top
 Further information go to top
 Order go to top
 Application of pt 7 go to top
 Assessors go to top
 Special referee go to top
 1 Qd R 125;  QSC 270,  Wilson J made a direction for an independent costs assessor to be appointed as a referee to make an assessment of costs payable pursuant to a settlement agreement.
 Procedure before special referee go to top
 Submission of question to court go to top
 Report of special referee go to top
 Use of opinion, decision or findings go to top
 Remuneration of special referee and assessor go to top
Section 257 of the Supreme Court Act 1995 (Qld) (since repealed), by which the referee would be deemed to be an officer of the Court, and r 506, which makes provision for his remuneration, are inconsistent with the appointment of an existing officer of the Court as referee:,  (Wilson J).