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Rule 1(b), giving the court power "to limit the number of witnesses (including expert
witnesses) that a party may call on a particular issue" should perhaps be discussed
briefly. It may be objected that this rule would involve the court trespassing into the
area of excluding relevant and admissible evidence. However, the Working Party
considers this an invalid objection.
(a)
In the first place, the proposed rule does not permit the court to exclude
evidence altogether on any particular issue. It requires the party concerned to
avoid spending excessive time adducing evidence on the issues, echoing the
approach to relevance as a matter of degree, reflected in Recommendation 99
above.
(b)
Secondly, the proposal requires the power to limit witnesses to be exercised
subject to the constraints of Rule 2 (b) (not detracting from the principle that
each party is entitled to a fair trial) and Rule 2(c) (ensuring that each party is
given a reasonable opportunity to lead evidence and cross-examine witnesses).
Taking these matters into account, a restriction on the number of witnesses of
fact called on a particular issue would not impose any unwarranted restriction
on a party's freedom to call needed evidence. It enables the court to arrest
repetitive and unhelpful testimony which does no more than prolong the trial.
(c)
As previously noted, the court already has power under O 38 r 4, to limit the
number of expert witnesses who may be called at the trial.
Recommendation 108: A rule along the lines of O 34 r 5A of the Western
Australian Rules of the Supreme Court should be adopted, setting out the
court's powers of case management in relation to trials, together with a practice
direction providing that such powers should primarily be exercised at the pre-
trial review.
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