Podcast
Questions and Answers
What is a primary reason for taking evidence through commission?
What is a primary reason for taking evidence through commission?
- To facilitate the cross-examination of witnesses.
- To avoid the need for the witness to travel.
- When witnesses are deceased.
- When witnesses are unable to attend due to specific reasons like old age or ill health. (correct)
What types of evidence may be admitted by way of affidavit?
What types of evidence may be admitted by way of affidavit?
- Evidence that contradicts established facts.
- Only evidence that is highly contested.
- Eyewitness testimony.
- Technical or scientific evidence. (correct)
When was Rule 37A, related to judicial case management, introduced?
When was Rule 37A, related to judicial case management, introduced?
- 1st January 2018.
- 1st July 2019. (correct)
- 1st September 2021.
- 1st August 2020.
What is the role of a case management judge concerning trial readiness certification?
What is the role of a case management judge concerning trial readiness certification?
Why is judicial case management utilized?
Why is judicial case management utilized?
What must occur after the close of pleadings to prepare for trial?
What must occur after the close of pleadings to prepare for trial?
When must the notice of set-down for the trial be served?
When must the notice of set-down for the trial be served?
What is the purpose of the discovery process in trial preparation?
What is the purpose of the discovery process in trial preparation?
According to HCR 35 and MCR 23, what must the discovery affidavit include?
According to HCR 35 and MCR 23, what must the discovery affidavit include?
What is a necessary step to be taken prior to the trial date in terms of trial management?
What is a necessary step to be taken prior to the trial date in terms of trial management?
What is the timeframe for applying for a trial date in the Magistrates Court?
What is the timeframe for applying for a trial date in the Magistrates Court?
What type of evidence is important for the discovery process?
What type of evidence is important for the discovery process?
Which of the following is NOT part of the trial preparation outlined in Chapter 18?
Which of the following is NOT part of the trial preparation outlined in Chapter 18?
What is the time frame within which every party must admit the plan, diagram, model, or photograph after receiving it in the HC?
What is the time frame within which every party must admit the plan, diagram, model, or photograph after receiving it in the HC?
What is the purpose of requiring every party to allow inspection of the plan, diagram, model, or photograph?
What is the purpose of requiring every party to allow inspection of the plan, diagram, model, or photograph?
In which case did the court outline the necessity of delivering further particulars for trial?
In which case did the court outline the necessity of delivering further particulars for trial?
What should further particulars strictly enable the requesting party to do?
What should further particulars strictly enable the requesting party to do?
What is one reason why a party might request further particulars?
What is one reason why a party might request further particulars?
What does HCR 21(2) and MCR 16(2)(a) specify about the notice delivered to parties?
What does HCR 21(2) and MCR 16(2)(a) specify about the notice delivered to parties?
What may be a consequence if particulars are not delivered adequately?
What may be a consequence if particulars are not delivered adequately?
What is the maximum period for which property must remain available for inspection or examination after receiving the notice?
What is the maximum period for which property must remain available for inspection or examination after receiving the notice?
What is a restriction placed on the request for further particulars?
What is a restriction placed on the request for further particulars?
What is required from the party requesting the medical examination?
What is required from the party requesting the medical examination?
What is the minimum notice period required for a party intending to call an expert to testify?
What is the minimum notice period required for a party intending to call an expert to testify?
How many days before the hearing must a summary of the expert’s opinion be delivered?
How many days before the hearing must a summary of the expert’s opinion be delivered?
In the High Court, when must a joint expert minute be completed?
In the High Court, when must a joint expert minute be completed?
What must a party do when tendering evidence of a photograph?
What must a party do when tendering evidence of a photograph?
Who bears the costs associated with the medical examination?
Who bears the costs associated with the medical examination?
What is required for an expert to give oral testimony in court?
What is required for an expert to give oral testimony in court?
What types of materials does the High Court require to be discovered?
What types of materials does the High Court require to be discovered?
Which of the following documents does not need to be discovered?
Which of the following documents does not need to be discovered?
What must a party do to request discovery of a specific document?
What must a party do to request discovery of a specific document?
Which of the following statements is true regarding digital and electronic recordings in discovery?
Which of the following statements is true regarding digital and electronic recordings in discovery?
What time frame is allotted to make a discovery request after delivering a notice?
What time frame is allotted to make a discovery request after delivering a notice?
Which of the following best describes the control of documents in the context of discovery?
Which of the following best describes the control of documents in the context of discovery?
What is the primary purpose of the discovery process?
What is the primary purpose of the discovery process?
Which of the following does not fall under the definition of a tape recording in discovery?
Which of the following does not fall under the definition of a tape recording in discovery?
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Study Notes
Enrolment and Set-Down
- After pleadings close (litis contestatio), the matter is enrolled for trial.
- Notice of set-down is served and filed; a practice note is filed for High Court (HC) enrolment.
- In Magistrates' Courts (MC), apply for a trial date within 10 days, with set-down notice 15 days after pleadings close and at least 20 days before trial.
Discovery of Documents
- Discovery allows parties to prepare for trial and respond to each other's cases.
- A discovery affidavit lists discoverable documents. Authenticity is proved or admitted at trial.
- HCR 35 and MCR 23 detail what must be discovered and how.
- HC requires discovery of documents and tape recordings (including various media).
- MC requires discovery of documents and tapes, including digital, electronic, and other recordings.
- Some documents are exempt from discovery (e.g., witness statements, attorney-client communications, pleadings).
- A party can request discovery with leave of the court (HCR 35(14) and MCR 23(15)). A notice is served requesting specific documents; the receiving party has 5 (HC) or 10 (MC) days to object.
Inspection or Examination of Property and Things
- A party can request inspection or examination of property or a sample.
- The examined property/sample must remain available for 10 days after the notice.
- The requesting party obtains a full written report from the examiner within two months (or court-determined period).
- The requesting party bears the costs.
Expert Evidence
- Experts give oral testimony on their specialized fields.
- A summary of expert evidence must be provided to the other side at least 15 days (HC) or 10 days (MC) before the hearing.
- A notice of intention to call an expert must be delivered at least 15 days (HC) or 10 days (MC) before the hearing.
- A joint expert minute is required for experts in the same area.
Presentation of a Plan, Diagram, Model, or Photograph
- Parties must comply with requirements for presenting plans, diagrams, models, or photographs as evidence.
- Notice of intention must be delivered at least 15 days (HC) or 10 days (MC) before the hearing.
Further Particulars for Preparation for Trial
- Further particulars inform a party precisely of the opponent's case, preventing surprises.
- Requests should ask only for particulars strictly necessary for trial preparation.
- The aim is to enable adequate preparation and avoid unfair limitation of a party's case.
Evidence on Commission, Interrogatories, and Affidavit
- If a witness cannot attend trial due to health, age, or absence, evidence can be taken on commission.
- The commissioner can cross-examine the witness, and the testimony is transcribed.
- Interrogatories involve specific questions posed to the witness; the commissioner records the answers.
- Affidavits are used when a witness cannot attend, limited to less contested evidence, or for technical/scientific evidence.
Judicial Case Management
- Rule 37A (effective July 1, 2019) allows judicial case management after notice of intention to defend is filed.
- It's used to alleviate congested trial rolls and address delays.
- A case management judge ensures trial readiness before certification.
The Duties of the Registrar, Parties, and Case Management Judge
- Not detailed in provided text.
Certification of Trial Readiness and At Trial
- Not detailed in provided text.
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