No party to litigation is entitled to run a ‘perfectly prepared’ case at trial. As Justice Finkelstein once stated:

One of the primary objects of a commercial court is to bring the litigants’ dispute on for trial as soon as can reasonably and fairly be done. If, in some instances, the preparation of the case is not perfect so be it. A case that is reasonably well prepared is just as likely to be decided correctly as a perfectly prepared case.[1]

In preparation for a civil trial, a number of documents need to be prepared in relation to the issues in dispute and the identity of all relevant parties to the proceeding, including witnesses and experts. This is in addition to a range of documents required by the court rules prior to a trial, including pleadings, discovery materials, subpoenas and outlines of submissions.

Where there are deficiencies in the preparation or production of such documents, a party may seek to adjourn or vacate a trial date on the basis that they require further time to adequately prepare for the hearing. However, a party’s alleged inability to prepare for trial must be weighed against the prejudice it would cause to another party if an order delaying or vacating the trial was to be made. 

Further, in some circumstances, the delay of a trial date in relation to a lengthy and costly legal proceeding may cause significant injustice to another party who is ready and willing to proceed.

Finkelstein J’s statement above is a compelling authority for a party seeking to resist an application to vacate a trial date because it confirms the courts’ willingness to ensure practitioners abide by their civil obligations to ensure disputes are resolved as quickly, efficiently and fairly as possible. In light of the backlog of civil cases caused by the COVID pandemic, the courts are commonly referring to such authorities in favour of trials proceeding as scheduled.  

In the balance of this article, we summarise some of the grounds which parties commonly purport to rely upon when applying to vacate a trial date, and what you can do to oppose these arguments.

Withdrawal of counsel

In the lead up to trial, it is not unheard of for barristers to withdraw from the matter as a result of a conflicting timetable or unforeseen circumstances.

Where a party seeks to vacate a trial on the basis that their senior counsel (i.e. QC) has withdrawn, there are various grounds you can raise to resist such an application. For starters, the party seeking to vacate the trial will usually have a capable junior barrister already briefed who has been involved in all matters relating to the proceeding since around its commencement. In that instance, it could be successfully argued that there would not be any unreasonable prejudice if the matter were to proceed without senior counsel. This is particularly the case where:

  1. the quantum in dispute is relatively small
  2. the issues are not overly complex[2], or
  3. one of the other parties to the dispute has not engaged senior counsel

Further, senior barristers are often the most experienced and esteemed legal practitioners in their relevant areas of expertise. Unless they withdraw on the eve of the trial date, it can be reasonably argued that an alternative senior barrister can be engaged on short notice. The party seeking to vacate the trial would then bear the onus of demonstrating to the Court all reasonable steps they have taken to brief alternative senior counsel representation.

Alleged deficiencies in making discovery

The discovery process requires parties to disclose to each other all documents:

  1. on which the party relies
  2. that adversely affects the party’s own case
  3. that adversely affect another party’s case, or
  4. that support another party’s case.[3]

Where a party seeks to vacate a trial on the grounds of alleged deficiencies by another party in making discovery (for example, if a relevant document is provided on late notice), the party resisting the application may rely on the fact that it has discovered all documents which meet the categories above.

Our firm recently had success resisting an application to vacate a trial date where the other side argued that our client had not provided all documents relevant to the proceeding. The allegation was made just two weeks before the trial date.

Although our client vigorously maintained that all relevant documents had been discovered months earlier, we adopted a strategy that ultimately led to the application being dismissed by advising our client to simply discover every document in its possession capable of falling within any of the alleged categories of documents missing (this was made through a supplementary affidavit of documents). Accordingly, the Judge held that, even if the other side’s allegations were true, their concerns had been satisfied in any event.

Alleged deficiencies in particulars

In a civil proceeding, all parties are required to provide particulars necessary to:

  1. enable the opposite party to plead
  2. define the questions for trial, or
  3. avoiding surprise at trial[4]

Where an opposing party seeks to vacate a trial by alleging that you have not provided sufficient particulars, you can resist their application by providing particulars which go beyond the scope of the above categories. In addition, if there has been a delay by the other side in requesting further particulars, there is a greater chance that you will be able to point to the delay as a further ground for resisting the application.

Other potential grounds to resist application to vacate trial 

In all States and Territories, Civil Procedure legislation imposes various obligations on parties and the courts to faciliate the just, efficient and cost-effective resolution of the dispute.[5] More specifically, the courts must strike a balance between ‘case management considerations and the dictates of a fair trial’.[6] As part of striking such a balance, the courts accept that parties to commercial litigation expect disputes to be determined in a fair and timely manner.[7]

In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, the High Court of Australia stated as follows:

Where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by [Rule] 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules.

This observation is relevant to the exercise of State and Territory courts of their various discretions under Civil Procedure legislation.[8] The discretions empower State and Territory courts with broad powers to ensure cases are properly managed in the lead up to any trials. Accordingly, a party who wishes to apply to vacate a trial must act in good faith and explain the reasons why their application will not contradict the overarching purposes of Civil Procedure legislation.

[1] Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623, [4].
[2] Cf. Hart v Deputy Commissioner of Taxation [2016] FCA 250, [10].
[3] See for example in Victoria: Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 29.01.1(3); County Court Civil Procedure Rules 2018 (Vic), r 29.01.1(3).
[4] Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 13.10(2); County Court Civil Procedure Rules 2018 (Vic), r 13.10(2).
[5] For example, in Victoria see: Civil Procedure Act 2010 (Vic), s 7.
[6] Hodgson v Amcor Ltd [2011] VSC 272, [35].
[7] Dura (Australia) Pty Ltd v Hue Boutique Living Pty Ltd (No 2) [2011] VSC 518, [29].
[8] Dura (Australia) Pty Ltd v Hue Boutique Living Pty Ltd (No 2) [2011] VSC 518, [35].