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Queensland Bar Exam: Practice and Procedure study materials
Queensland Bar Exam: Practice and Procedure study resources

Queensland Bar Exam: Practice and Procedure practice questions

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Question 1Practice and Procedure

Under the Uniform Civil Procedure Rules, within what period after a defendant is served with an originating claim must the defendant file a notice of intention to defend in Queensland?

  1. 21 days
  2. 14 days
  3. 7 days
  4. 28 days Correct answer.

Explanation

The Uniform Civil Procedure Rules require a defendant served with an originating claim to file a notice of intention to defend within 28 days of service. This period runs from the date of service, not the date of filing the claim. Failure to comply allows the plaintiff to seek a default judgment.

Question 2Practice and Procedure

A plaintiff wishes to start proceedings in the Supreme Court of Queensland. Which document ordinarily commences the proceeding?

  1. An originating application
  2. An originating claim Correct answer.
  3. A statement of claim
  4. A notice of appeal

Explanation

Under the Uniform Civil Procedure Rules, proceedings are generally started by an originating claim, which is then accompanied by a statement of claim setting out the material facts. An originating application is reserved for matters where no substantial dispute of fact is expected. The claim is the initiating document; the statement of claim pleads the case.

Question 3Practice and Procedure

Which court in Queensland has jurisdiction to hear appeals from decisions of a single judge of the Supreme Court?

  1. The Full Federal Court
  2. The Court of Appeal Correct answer.
  3. The District Court
  4. The Magistrates Court

Explanation

The Court of Appeal, constituted within the Supreme Court of Queensland, hears appeals from single judges of the Supreme Court and from the District Court. The District Court and Magistrates Court are lower courts and cannot review Supreme Court decisions. The Full Federal Court hears appeals in the federal jurisdiction only.

Question 4Practice and Procedure

In civil proceedings, what is the standard of proof the plaintiff must satisfy?

  1. On a prima facie basis
  2. Beyond reasonable doubt
  3. On clear and convincing evidence
  4. On the balance of probabilities Correct answer.

Explanation

In civil proceedings the plaintiff bears the burden of proving the case on the balance of probabilities, meaning it is more likely than not that the facts are as alleged. The criminal standard of beyond reasonable doubt does not apply. Clear and convincing evidence is not a recognised Queensland civil standard.

Question 5Practice and Procedure

A party is dissatisfied with an interlocutory decision of a Supreme Court judge. Within what period must the party ordinarily file a notice of appeal?

  1. 10 days
  2. 21 days
  3. 28 days Correct answer.
  4. 14 days

Explanation

Under the Uniform Civil Procedure Rules, a notice of appeal must generally be filed within 28 days after the decision appealed from. The period may be extended by the court on application. Filing within time is a precondition to the appeal being competent.

Question 6Practice and Procedure

Which of the following is the correct description of a subpoena in Queensland civil proceedings?

  1. A written offer to settle a claim
  2. A document compelling a person to attend court or produce documents Correct answer.
  3. A notice requiring a party to admit facts
  4. A court order requiring a party to plead further particulars

Explanation

A subpoena is a court-issued process that compels a named person either to give evidence, to produce documents, or both. It is directed to a person, who may or may not be a party, and non-compliance can constitute contempt. It is distinct from pleadings, admissions and offers to settle.

Question 7Practice and Procedure

What is the effect of a party failing to file a defence within the required time after filing a notice of intention to defend?

  1. The claim is automatically dismissed
  2. The plaintiff may apply for default judgment Correct answer.
  3. The court must list the matter for trial
  4. The defendant is committed for contempt

Explanation

If a defendant files a notice of intention to defend but fails to file a defence in time, the plaintiff may apply for judgment by default. The court does not dismiss the claim, and contempt is not the ordinary consequence of a pleading default. Default judgment is available because the defendant has not raised a pleaded answer.

Question 8Practice and Procedure

Which document must a party file to seek an interlocutory order during a proceeding?

  1. A request for trial date
  2. An affidavit of service
  3. An application Correct answer.
  4. A notice of discontinuance

Explanation

Interlocutory relief is sought by filing an application supported by affidavit evidence, and the application is heard in chambers or in court. An affidavit of service proves service but does not itself seek an order. A notice of discontinuance ends a proceeding, and a request for trial date moves the matter toward trial.

Question 9Practice and Procedure

A plaintiff serves an originating claim but the defendant neither files a notice of intention to defend nor appears. What remedy is available to the plaintiff?

  1. Summary judgment on the pleadings
  2. An order for substituted service
  3. Strike-out of the claim
  4. Default judgment Correct answer.

Explanation

Where a defendant fails to file a notice of intention to defend within the required time, the plaintiff may apply for default judgment. Default judgment is available because the defendant has not taken any step to contest the claim. Summary judgment is a different procedure that requires the absence of a real prospect of success.

Question 10Practice and Procedure

A party wishes to amend its statement of claim after the close of pleadings but before trial. What is the general approach of the court?

  1. Amendment may be allowed if it can be compensated by costs and causes no prejudice Correct answer.
  2. Amendment is never permitted after pleadings close
  3. Amendment requires the consent of all parties in every case
  4. Amendment is permitted only with leave of the Court of Appeal

Explanation

The court may allow an amendment at any stage, including after pleadings close, provided any prejudice to the other party can be addressed by an award of costs or an adjournment. The overriding purpose of just and efficient resolution guides the discretion. Leave of the Court of Appeal is not required for a pleading amendment at first instance.

Question 11Practice and Procedure

What is the principal purpose of a directions hearing in a Queensland civil proceeding?

  1. To manage the proceeding and set a timetable for steps Correct answer.
  2. To hear appeals from the Magistrates Court
  3. To determine the final merits of the claim
  4. To punish parties for contempt

Explanation

Directions hearings allow the court to manage the proceeding, set timetables, and make orders about pleadings, disclosure, expert evidence and trial preparation. They are case-management tools, not final hearings on the merits. Contempt and appeals are dealt with through separate processes.

Question 12Practice and Procedure

A party seeks disclosure of documents from the other side. What is the test for disclosure under the Uniform Civil Procedure Rules?

  1. The documents must have been created after the proceeding began
  2. The documents must be in the possession of a third party
  3. The documents must be admissible in evidence at trial
  4. The documents must be directly relevant to an issue in the proceeding Correct answer.

Explanation

Disclosure under the rules extends to documents directly relevant to an issue in the proceeding, whether or not they are admissible in evidence. Relevance to a pleaded issue is the touchstone, not admissibility. Documents held by third parties are obtained by subpoena rather than disclosure.

Question 13Practice and Procedure

A defendant wishes to challenge the sufficiency of the plaintiff's statement of claim. What is the appropriate procedural step?

  1. Seek default judgment
  2. Issue a subpoena to the plaintiff
  3. Apply to strike out the pleading or request further particulars Correct answer.
  4. File a defence denying all allegations

Explanation

A party may apply to strike out a pleading that discloses no reasonable cause of action or is otherwise deficient, and may also request further and better particulars. Filing a defence does not cure a defective claim. Default judgment and subpoenas are not mechanisms for challenging pleading sufficiency.

Question 14Practice and Procedure

What is the consequence of a plaintiff failing to serve an originating claim within the period of its validity without obtaining an extension?

  1. The court automatically renews the claim
  2. The claim lapses and cannot be served without an extension or fresh proceeding Correct answer.
  3. The defendant must file a defence anyway
  4. The claim remains valid indefinitely

Explanation

An originating claim is valid for a limited period for service, and if it is not served within that period the claim lapses unless the court extends its validity. A lapsed claim cannot be validly served. The court does not renew claims automatically; an application is required.

Question 15Practice and Procedure

Which of the following best describes the role of an affidavit in interlocutory proceedings?

  1. It provides sworn written evidence relied on by the parties Correct answer.
  2. It replaces the need for any oral hearing
  3. It is a formal offer to settle
  4. It is a pleading that defines the issues

Explanation

An affidavit is a sworn written statement of evidence used to place facts before the court, commonly in interlocutory applications. It does not replace the hearing itself, nor does it define the issues in the way pleadings do. Offers to settle are made through separate documents such as a notice of offer.

Question 16Practice and Procedure

A party wants to adduce expert evidence at trial. What is generally required under the Uniform Civil Procedure Rules?

  1. Leave may be required and experts' reports must be disclosed in accordance with the rules Correct answer.
  2. Expert evidence is inadmissible in civil trials
  3. The expert must be an employee of the court
  4. Any number of experts may be called without restriction

Explanation

The rules regulate expert evidence by requiring disclosure of reports and, in many cases, leave before more than one expert is called on an issue. The expert's paramount duty is to the court, not to the party retaining them. Expert evidence is admissible and often central in technical disputes.

Question 17Practice and Procedure

What is the effect of a notice of offer to settle served under the rules where the plaintiff obtains a judgment no less favourable than the offer?

  1. The defendant is entitled to costs
  2. The plaintiff may be entitled to indemnity costs from the date of the offer Correct answer.
  3. The offer has no consequences for costs
  4. The proceeding is automatically stayed

Explanation

Where a party makes a formal offer and the other party fails to accept it, and the judgment is no less favourable than the offer, the offering party may be entitled to more favourable costs, often on an indemnity basis from the date of the offer. The offer does not stay the proceeding. Costs consequences are determined by the court in its discretion.

Question 18Practice and Procedure

In which circumstances may a court order that a proceeding be dismissed for want of prosecution?

  1. Whenever the defendant requests it without more
  2. Only after a trial has commenced
  3. Only where the plaintiff is unrepresented
  4. Where there has been inordinate and inexcusable delay causing prejudice Correct answer.

Explanation

A proceeding may be dismissed for want of prosecution where there has been inordinate and inexcusable delay that causes prejudice to the defendant or risks an unfair trial. The power is discretionary and protective, not automatic on request. Representation status and the stage of trial are not the governing criteria.

Question 19Practice and Procedure

A judgment debtor fails to comply with a monetary judgment. Which enforcement mechanism allows examination of the debtor's financial position?

  1. A writ of possession
  2. An enforcement hearing Correct answer.
  3. A garnishee order
  4. A charging order

Explanation

An enforcement hearing requires the judgment debtor to attend and disclose their financial circumstances, enabling the creditor to choose an appropriate enforcement method. A garnishee order attaches debts owed to the debtor, while a writ of possession recovers land and a charging order charges property. Only the enforcement hearing examines the debtor's overall means.

Question 20Practice and Procedure

What is the ordinary consequence of a party failing to comply with a court order for disclosure?

  1. The party is automatically imprisoned
  2. The court may make costs orders, exclude evidence, or strike out the proceeding Correct answer.
  3. The order is treated as having been complied with
  4. The proceeding is transferred to the Federal Court

Explanation

Non-compliance with a disclosure order is a breach of a court order and may attract sanctions including adverse costs, exclusion of evidence, or striking out the claim or defence. Imprisonment is not an automatic consequence, and transfer to another court is unrelated. The court does not deem compliance where it has not occurred.

Question 21Practice and Procedure

A defendant believes the plaintiff's claim discloses no reasonable cause of action. What must the defendant establish to succeed on a strike-out application?

  1. That the plaintiff has limited financial resources
  2. That the claim is so obviously untenable it cannot possibly succeed Correct answer.
  3. That the claim involves a question of fact
  4. That the claim is unlikely to succeed at trial

Explanation

A strike-out for failure to disclose a reasonable cause of action requires the claim to be so obviously untenable that it cannot possibly succeed, a high threshold. Mere weakness or unlikelihood of success is insufficient because disputed facts must go to trial. The plaintiff's resources and the presence of factual questions are not the test.

Question 22Practice and Procedure

A party seeks to rely at trial on a document not disclosed during disclosure. What is the general position under the rules?

  1. The party generally needs the court's leave to rely on the undisclosed document Correct answer.
  2. The document is automatically admissible if relevant
  3. The document must be given to the judge in chambers only
  4. The document may be used freely because disclosure is optional

Explanation

A party who fails to disclose a document generally cannot rely on it at trial without the court's leave, which ensures disclosure obligations are meaningful. Relevance alone does not cure the failure to disclose. Providing the document confidentially to the judge is not a recognised substitute for disclosure and leave.

Question 23Practice and Procedure

Which statement correctly describes the operation of the court's discretion on costs in Queensland civil proceedings?

  1. Costs are fixed by statute at a set percentage
  2. Costs are in the discretion of the court, ordinarily following the event Correct answer.
  3. Costs automatically follow the event without exception
  4. Each party always bears its own costs

Explanation

Costs are in the discretion of the court, but the ordinary rule is that costs follow the event, so the successful party recovers costs from the unsuccessful party. The discretion permits departure where justice requires, for example because of offers, misconduct or partial success. Costs are not automatically allocated in every case, nor fixed by a statutory percentage.

Question 24Practice and Procedure

A judgment creditor seeks to enforce a money judgment against a debt owed to the debtor by a third party. Which mechanism is appropriate?

  1. A garnishee order Correct answer.
  2. A writ of possession
  3. An originating application for contempt
  4. An enforcement hearing

Explanation

A garnishee order attaches a debt owed by a third party to the judgment debtor and requires the third party to pay the creditor instead. A writ of possession concerns land, and an enforcement hearing examines the debtor's means rather than attaching a specific debt. Contempt proceedings are not an enforcement mechanism for money judgments.

Question 25Practice and Procedure

A party applies for summary judgment. What must the applicant demonstrate under the Uniform Civil Procedure Rules?

  1. That the claim has some prospect of success
  2. That the claim exceeds a specified monetary amount
  3. That the opposing party has no real prospect of succeeding and there is no need for a trial Correct answer.
  4. That the opposing party has failed to appear

Explanation

Summary judgment may be granted where the court is satisfied the opposing party has no real prospect of succeeding on the claim or defence and there is no need for a trial of the matter. A mere weak case is insufficient, and non-appearance is dealt with through default judgment. The monetary value of the claim is irrelevant to the summary judgment test.

Question 26Practice and Procedure

In a Queensland civil proceeding, within what period after filing must an originating claim generally be served on a defendant?

  1. Twenty-eight days from the date of filing
  2. Two months from the date of filing
  3. Twelve months from the date of filing
  4. Six months from the date of filing Correct answer.

Explanation

Under the Uniform Civil Procedure Rules, an originating claim is valid for service for six months after it is filed, unless the court extends the period. Service within that window is what keeps the proceeding validly on foot against the defendant.

Question 27Practice and Procedure

Which court in Queensland is the principal trial court for civil claims of moderate value, generally up to the District Court monetary limit?

  1. The District Court Correct answer.
  2. The Supreme Court
  3. The Court of Appeal
  4. The Magistrates Court

Explanation

The District Court hears civil claims within its statutory monetary jurisdiction, sitting between the Magistrates Court and the Supreme Court. Its jurisdictional limit is set by legislation and determines which claims it may hear at first instance.

Question 28Practice and Procedure

A defendant in a Supreme Court proceeding wants to dispute the claim. What is the first document the defendant must file?

  1. A counterclaim
  2. A notice of intention to defend Correct answer.
  3. A defence, without any prior notice
  4. An application for summary dismissal

Explanation

A defendant who intends to defend must first file a notice of intention to defend, which signals the intention to contest and preserves the right to take further steps. The defence itself follows within the time allowed after that notice.

Question 29Practice and Procedure

What is the usual time limit for a defendant to file a defence after filing a notice of intention to defend in a Queensland civil proceeding?

  1. Seven days
  2. Ninety days
  3. Twenty-eight days Correct answer.
  4. Fourteen days

Explanation

The rules generally allow a defendant twenty-eight days after filing the notice of intention to defend to file and serve a defence. This period may be varied by the court or by the rules in particular circumstances.

Question 30Practice and Procedure

Which of the following best describes the function of pleadings in a Queensland civil proceeding?

  1. To record the orders made at each directions hearing
  2. To define the issues in dispute and give fair notice of each party's case Correct answer.
  3. To summarise the evidence each party will call at trial
  4. To list the documents each party intends to tender

Explanation

Pleadings set out the material facts each party relies on, thereby defining the issues for trial and ensuring each side knows the case it must meet. They are not a vehicle for evidence or procedural history.

Question 31Practice and Procedure

A plaintiff wants to discontinue a proceeding before trial. What is generally required under the Uniform Civil Procedure Rules?

  1. The plaintiff must obtain the defendant's consent or the court's leave if the proceeding has progressed beyond a set stage Correct answer.
  2. The plaintiff may discontinue at any time without any notice
  3. The plaintiff must first obtain a judgment
  4. The plaintiff must wait until the trial commences

Explanation

A plaintiff may discontinue, but once the proceeding has advanced beyond the early stage, discontinuance generally requires the defendant's consent or the court's leave. This protects defendants from wasted costs and prejudice.

Question 32Practice and Procedure

Which document generally commences an appeal from a decision of the District Court to the Court of Appeal in Queensland?

  1. A notice of intention to defend
  2. An originating application
  3. A notice of appeal Correct answer.
  4. A statement of claim

Explanation

An appeal to the Court of Appeal is commenced by filing a notice of appeal within the time prescribed by the rules. The notice identifies the decision appealed from and the grounds relied on.

Question 33Practice and Procedure

What is the ordinary consequence when a party fails to attend a directions hearing without a reasonable excuse?

  1. The party is permanently barred from filing any further documents
  2. The court may make orders, including dismissing the proceeding or striking out a defence, in the party's absence Correct answer.
  3. The proceeding is automatically transferred to another court
  4. The hearing is adjourned indefinitely

Explanation

Where a party does not appear, the court may proceed in its absence and make such orders as it considers appropriate, including dismissal or striking out. This ensures procedural defaults do not stall the proceeding.

Question 34Practice and Procedure

A party wishes to rely on a document at trial that was created after disclosure was completed. What is the general position under the rules?

  1. The document may be used freely without any further step
  2. The party should seek leave or provide the document to the other side promptly, and the court may make orders about its use Correct answer.
  3. The document must be destroyed
  4. The document is automatically inadmissible in all circumstances

Explanation

Continuing disclosure obligations mean a party who becomes aware of a relevant document after disclosure should promptly notify the other side. The court may permit use of the document or make directions, so automatic exclusion is not the rule.

Question 35Practice and Procedure

A defendant wants to bring a claim against a third party who may be liable to contribute to the plaintiff's loss. What procedural step is generally available?

  1. File a notice of appeal
  2. File an originating claim against the plaintiff
  3. File a third party notice Correct answer.
  4. File an affidavit of service

Explanation

A defendant may seek contribution or indemnity from a third party by filing and serving a third party notice, which brings that person into the proceeding. The third party then becomes a party for the purposes of the claim.

Question 36Practice and Procedure

A party seeks to rely on a document at trial that was not disclosed during disclosure. What is the general position under the rules?

  1. The document may be used without restriction because trial evidence is not tied to disclosure
  2. The party needs the court's leave, and the court will consider prejudice to the other side and may refuse or impose conditions Correct answer.
  3. The document may be used only if the other party consents in writing
  4. The document is automatically admitted because the trial judge has no discretion

Explanation

A party generally cannot rely on an undisclosed document without leave, and the court weighs prejudice, explanation for non-disclosure and the interests of justice. Leave may be granted with conditions such as an adjournment or costs.

Question 37Practice and Procedure

A party wants to adduce evidence from a witness who lives overseas and cannot attend trial. What is the usual procedural approach?

  1. The party must abandon reliance on that witness
  2. The party may apply for an order permitting evidence by video link or for a commission, subject to the court's discretion Correct answer.
  3. The party may simply read the witness's unsworn letter as evidence
  4. The party must commence a separate proceeding in the witness's country

Explanation

Courts may permit evidence to be given by video link or other remote means, or order that evidence be taken on commission, where this serves the interests of justice. The court controls how such evidence is received.

Question 38Practice and Procedure

A party fails to comply with an order requiring it to file a list of documents by a set date. What is the court's usual response?

  1. The defaulting party is committed to prison without any hearing
  2. The court has no power to act because disclosure is a private matter
  3. The court may make further orders, including costs orders or orders striking out the party's claim or defence Correct answer.
  4. The proceeding is automatically stayed for twelve months

Explanation

Courts have broad case management powers to enforce procedural orders, including making costs orders, extending time, or striking out a claim or defence. Any sanction is imposed after considering the circumstances and the interests of justice.

Question 39Practice and Procedure

A plaintiff wishes to amend the originating claim to correct a misdescribed party before the defendant has been served. What is the general approach?

  1. Amendment is prohibited once the claim is filed
  2. The plaintiff must wait for the defendant's consent
  3. The plaintiff may amend without leave in the early stage, subject to the rules, and should serve the amended claim Correct answer.
  4. The plaintiff must commence an entirely new proceeding

Explanation

The rules permit amendment without leave in defined early circumstances, and a party should serve the amended document so the other side is aware of the corrected case. Leave becomes necessary at later stages.

Question 40Practice and Procedure

A party seeks an extension of time to file a document after the deadline has passed. What must the party generally show?

  1. That there is a satisfactory explanation for the delay and that the extension will not cause injustice Correct answer.
  2. That the party has already won the proceeding
  3. That the other side agrees, which is the only relevant consideration
  4. That the court has no discretion in the matter

Explanation

The court considers the reason for the delay, any prejudice to the other party, and the interests of justice in deciding whether to extend time. Agreement of the other side helps but is not the sole criterion.

Question 41Practice and Procedure

A defendant applies to strike out part of the plaintiff's statement of claim as embarrassing. What must the defendant establish?

  1. That the trial date has been set
  2. That the pleading is so unclear or deficient that the defendant cannot know the case to meet Correct answer.
  3. That the claim is likely to fail on the merits
  4. That the plaintiff has insufficient funds

Explanation

A pleading may be struck out if it is vague, ambiguous or otherwise fails to disclose a reasonable cause of action, so that the other side cannot plead a response. The test focuses on the intelligibility of the pleading, not the ultimate merits.

Question 42Practice and Procedure

A party wants to call an expert witness at trial. What is generally required before the expert's report can be relied on?

  1. The expert must attend every directions hearing
  2. The expert must be a court employee
  3. The expert must be approved by the opposing party
  4. The expert's report should be served in accordance with the rules and the expert's duties explained in the report Correct answer.

Explanation

Expert evidence is ordinarily admitted only if the report has been served within the time allowed and complies with the expert's overriding duty to the court. The report must be independent and identify the expert's qualifications and reasoning.

Question 43Practice and Procedure

A plaintiff obtains judgment for a money sum but the defendant does not pay. Which enforcement mechanism allows the plaintiff to seize and sell the defendant's property?

  1. A charging order
  2. An examination summons
  3. A garnishee order
  4. A writ of execution Correct answer.

Explanation

A writ of execution authorises an enforcement officer to seize and sell the judgment debtor's property to satisfy the judgment. Other mechanisms such as garnishee orders and examination summonses serve different purposes.

Question 44Practice and Procedure

A judgment creditor believes a third party owes money to the judgment debtor. Which enforcement mechanism is directed at that debt?

  1. A charging order
  2. A garnishee order Correct answer.
  3. An examination summons
  4. A writ of execution

Explanation

A garnishee order requires a third party who owes money to the judgment debtor to pay the judgment creditor instead, up to the amount of the judgment. It targets debts owed to the debtor rather than the debtor's tangible property.

Question 45Practice and Procedure

A party is dissatisfied with an interlocutory decision and wishes to appeal. What is generally required?

  1. The party may appeal as of right in all cases
  2. The party must commence a new proceeding
  3. The party may need leave to appeal, depending on the nature of the decision and the rules Correct answer.
  4. The party must wait until final judgment and cannot appeal interlocutory decisions

Explanation

Appeals from interlocutory decisions often require leave, and the rules prescribe when leave is necessary and the time for seeking it. The court considers factors such as whether the appeal would resolve the real issue and avoid delay.

Question 46Practice and Procedure

A party wants to adduce evidence from a witness who is reluctant to attend. What is the usual procedural step?

  1. Issue a subpoena requiring the witness to attend and produce documents Correct answer.
  2. File a statement of claim
  3. Apply for summary judgment
  4. File a notice of intention to defend

Explanation

A subpoena compels a witness to attend court to give evidence or produce documents, and failure to comply may have consequences. It is the standard mechanism for securing the attendance of an unwilling witness.

Question 47Practice and Procedure

In deciding whether to order a stay of a proceeding pending an appeal, what does the court primarily consider?

  1. Whether the parties agree on the outcome
  2. Whether the appellant has a strong financial position
  3. Whether the trial judge has retired
  4. Whether there is a real risk that the appeal will be rendered futile without a stay and where the balance of convenience lies Correct answer.

Explanation

A stay is discretionary and is directed at preserving the subject matter or utility of the appeal. The court weighs the risk of injustice, the strength of the appeal, and the balance of convenience between the parties.

Question 48Practice and Procedure

A party seeks to set aside a default judgment entered in the defendant's absence. What must the defendant generally demonstrate?

  1. That the defendant has a good explanation for the default and a defence with real prospects of success Correct answer.
  2. That the trial judge made a finding of fact
  3. That the plaintiff has since become insolvent
  4. That the defendant has paid the judgment debt in full

Explanation

The court exercises discretion to set aside a default judgment, considering the reason for the default, any delay, prejudice to the plaintiff, and whether the defendant has a defence worth trying. A defence with real prospects is a key factor.

Question 49Practice and Procedure

A party applies for summary judgment on part of a claim. What must the applicant establish under the rules?

  1. That the respondent has no real prospect of succeeding on that part of the claim and there is no need for a trial Correct answer.
  2. That the parties have completed disclosure
  3. That the claim exceeds the jurisdictional limit
  4. That the applicant has filed all affidavits in the proceeding

Explanation

Summary judgment requires the applicant to show that the respondent has no real prospect of success and that there is no need for a trial of the claim or part. The court may grant judgment on part of a claim if those criteria are met.

Question 50Practice and Procedure

A plaintiff serves a notice of offer to settle, and the defendant rejects it, but the plaintiff later obtains judgment no less favourable than the offer. What is the usual costs consequence?

  1. The defendant is entitled to costs
  2. The court must order a new trial
  3. The plaintiff is generally entitled to indemnity costs from the date the offer could have been accepted Correct answer.
  4. Each party bears its own costs

Explanation

Where a plaintiff obtains judgment no less favourable than its offer, the rules generally provide for indemnity costs from the date the offer was capable of acceptance. The court retains a discretion but the usual consequence favours the plaintiff.