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Parties to a court case might expect to prepare and submit witness briefs and a common bundle of documents before trial, albeit subject to any orders made at case management conferences. Witness briefs or ‘briefs of evidence’ are ordinarily filed and served first, and then the parties work together to compile and file a ‘common bundle’ of all evidence to be relied upon at trial.
Briefs of evidence
Rule 9.7 of the High Court Rules sets out what briefs of evidence are and what is required of them:
(1) In this subpart, brief, in relation to the evidence of a witness to be called by a party, means a written statement setting out evidence proposed to be given by that witness.
(2) The date by which the parties must complete and serve briefs upon each other, simultaneously or sequentially, must be determined by the court at a case management conference, having regard to the needs of the case.
(3) Whether or not some evidence is directed to be led orally, the brief must contain the testimony intended to be taken from that witness on that subject.
(4) Every brief –
(a) must be signed by the witness by whom the brief is made:
(b) must be in the words of the witness and not in the words of the lawyer involved in drafting the brief:
(c) must not contain evidence that is inadmissible in the proceeding:
(d) must not contain any material in the nature of a submission:
(e) must avoid repetition:
(f) must avoid the recital of the contents or a summary of documents that are to be produced in any event:
(g) must be confined to the matters in issue.
(5) If the brief does not comply with the requirements of subclause (4), the court, prior to or during the trial, may direct that it not be read in whole or in part, and may make such order as to costs as the court sees fit.
(6) When a brief is served, the party serving it must as soon as practicable advise the Registrar what has been served, upon whom, and the date of service.
So a brief of evidence is a written statement of the evidence that a witness will give.
Briefs could include:
A. The full name, occupation and place where that witness lives. For example:
1. I am John William Smith of Whakatane, Accountant.
B. If the witness is giving evidence for an organisation, that witness’s relationship with the organisation, authorisation to give evidence for the organisation and the basis of that evidence. For example:
2. I am employed by the plaintiff company as its in house accountant.
3. I am authorised to give evidence on behalf of the plaintiff in this court case.
4. I give evidence based on my own knowledge and the plaintiff company’s knowledge contained within its files and record.
C. Some background to put events at issue in context. For example:
5. The plaintiff, J Solar Ltd, manufactures solar cells and solar panels.
6. Processing purchase orders for the plaintiff’s products is a part of my role.
7. That includes checking that the plaintiff’s standard purchase order form has been correctly filled out by its customers.
8. The defendant, MatSol Pty Ltd, has purchased various quantities of solar cells and panels from the plaintiff from time to time since October 2006.
9. I understand the defendant sells and installs complete solar energy generation and storage systems to households in New South Wales and Queensland in Australia.
10. James Matthews of the defendant company is the person who ordinarily fills out the plaintiff’s purchase order forms.
11. I have dealt with Mr Matthews by phone and email from time to time over the years when he has had questions about prices and delivery timeframes.
D. An account of relevant evidence, keeping in mind the requirements of rule 9.7 of the High Court Rules. For example:
The April 2013 contract
12. Mr Matthews called me by phone near the end of March 2013.
13. He wanted to know how much it would cost for 75 ‘JX-13’ solar panels.
14. The JX-13 panels were a new product at the time: We had only been offering them for sale for about 2 or 3 weeks before Mr Matthews called me about them.
15. I told Mr Matthews we were selling the JX-13 panels for $4,700 for a set of 5 but that I could see if I could get him a discount for what would amount to 15 sets.
16. I called Mr Matthews back the next day and told him we could discount the panels to $4,200 per set of 5 if he ordered 15 sets, so $63,000 all up.
17. That was the same price we were offering our older ‘JX’ solar panels for.
18. The JX-13 panels are a new and improved version of the JX panels, but we still offer the JXs as a low cost alternative.
19. Anyway, Mr Matthews said the price would be fine and that he would send a purchase order to me by email after a meeting that day.
20. I explained to Mr Matthews that the panels were being made to order at that point in time, and that it might 5 or 6 weeks before we could fill his order.
21. Mr Matthews said he did not realise there would be such a delay, but that he would come back to me about his order.
22. I did not hear anything further from Mr Matthews until he sent a purchase order form though to me by email on 15 April 2013.
23. The order was for 75 JX panels rather than the JX-13s.
24. Mr Matthews explained in his email with the purchase order that he could not wait 6 weeks for the JX-13s.
25. All purchase order forms are subject to the plaintiff’s standard terms and conditions of sale.
26. The standard terms are published on the plaintiff’s website: http://www.JSolar.nz/termsofsale.
27. I know Mr Matthews is aware of those standard terms because we discussed them about 3 or 4 years ago when he asked for a refund for a panel he said was defective.
28. Also, the standard terms require a deposit of 35% of the amount of a purchase order “within 5 working days of the purchase order” and we received $22,050 from the defendant company on 24 April 2013.
29. The $22,050 was paid to the plaintiff’s account by electronic banking, and the reference supplied was ‘MatSolJX15’.
30. That was the right deposit amount for the 15 sets of JX panels ordered.
Collection without payment
31. Our records indicate the panels were collected from our factory on 5 May 2013.
32. The plaintiff requires full payment for goods before they are released to customers, and that is set out in the standard terms and conditions.
33. In this case, however, the defendant somehow collected the panels without paying the balance of the purchase price.
34. I do not know why that was: I did not agree to any special arrangement for payment; I was not present at the factory when the panels were collected; and there is nothing in the plaintiff’s records to indicate why the panels were allowed to leave the factory without full payment.
E. A part for the brief to be signed and dated by the witness. For example:
John William Smith
Index of documents to be relied upon at trial
Rule 9.2 of the High Court Rules provides:
(2) When a party discloses documents to be relied upon at the trial or hearing, that party must supply a list of those documents incorporating any list previously supplied, so that the other parties always have an up-to-date list of the documents that party intends to rely upon. The list may be in any format and is to be labelled and referred to as that party’s index.
Consideration should be given to an index or updated index of documents at the time witness briefs are filed and served. This is because you would be ‘disclosing documents to be relied upon at trial’ if documents are referred to in the witness briefs. If no index has been disclosed before the serving of the witness briefs then it ought to be disclosed at that point. Similarly, if the briefs refer to documents not included in some previous index then the index should be updated and disclosed with those briefs.
Common bundle of documents
There is a general duty on parties to a court case to cooperate in the preparation of a bundle of documents to be relied on by them at trial under rule 9.4 of the High Court Rules. That bundle is known as the ‘common bundle’. Rule 9.4(5) provides that the common bundle must:
(a) arrange the documents chronologically, or in any other appropriate sequence or manner agreed by counsel and approved by the court:
(b) number each page of the common bundle in a consecutive sequence:
(c) set out before the first document a common bundle index that shows –
(i) a short description of each document:
(ii) the date of each document:
(iii) the party from whose custody each document has been produced:
(iv) the page number of each document as it appears in the common bundle:
(d) use a format that is, so far as possible, compatible with that used by the parties when listing documents under rule 8.16 (Schedule appended to affidavit of documents).
As to timing, rule 9.4(6) of the High Court Rules provides:
Unless the court directs otherwise, the common bundle must be filed and served not later than 15 working days after the date when the last brief of any party is served under rule 9.7
Chronology of facts
Rule 9.9 of the High Court Rules requires chronologies of facts intended to be relied upon at trial to be exchanged:
(1) The plaintiff must, not later than 15 working days after the common bundle has been served, file and serve a chronology of the facts it intends to rely upon at the trial or hearing.
(2) In preparing the chronology, the plaintiff must –
(a) set out the facts in chronological order; and
(b) cross-reference the facts to –
(i) 1 or more documents; or
(ii) 1 or more statements in written briefs; and
(c) include, when available, common bundle index references or page references.
(3) The other parties must, not later than 15 working days after service of the plaintiff’s chronology, file and serve their responses to it, identifying which facts they dispute, and adding any other facts they intend to rely upon.
(4) In preparing their responses, the other parties must –
(a) cross-reference disputed facts to different or contradictory facts in the plaintiff’s chronology; and
(b) list any additional facts; and
(c) comply with subclause (2)(b).
(5) The court may modify the requirements of this rule at a conference under rule 7.5.
Notice of significant facts in dispute
Rule 9.10 of the High Court Rules requires:
(1) After the preparation and service of the chronologies of facts, the parties must bring significant facts that are disputed to the attention of the court.
(2) The obligation in subclause (1) may be discharged at a case management or issues or pre-trial conference, or at another time, but must, in any event, be discharged not later than 15 working days after service of the chronologies of fact has been completed.
(3) The court may, before the giving of evidence, and either before or at the trial or hearing, direct that evidence be given orally (an oral evidence direction).
The notice of significant facts that are in dispute could be given by memorandum.