IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN
No. 313 of 1991
(9116469)

BETWEEN:

(tho93010)

JUNE D'ROZARIO & ASSOCIATES PTY LTD
Plaintiff
AND:
MICHAEL MAKRYLOS
First Defendent
AND:

MANUEL MAKRYLOS
Second Defendant

CORAM:	THOMAS J

REASONS FOR JUDGMENT
(Delivered 23 February 1993)

This is an application by the plaintiff that the defendant be dux litis at the hearing of this proceeding. The application is opposed by the defendant.

The court may give directions as to the order of evidence and generally as to the conduct of the trial. Order 49.01 of the Supreme Court Rules.

In the absence of a direction the plaintiff  begins if the plaintiff has the burden of proof  on a question and the defendant begins if the defendant has the burden of proof on all questions. Order 49.02(a) and (b) of the Supreme Court Rules.

The longstanding rule of procedure is that, where  the plaintiff bears the legal onus of proof on any question, the plaintiff has the benefit and burden of going first: Mercer v Whall (1845) 5 QB 447, 114 ER 1318;

.1

Brown V Lethbridge (1876) 14 SCR NSW 315; Portelli v Port Waratah Stevedoring Co Pty Ltd [1959] VR 195.

One of the tests to be applied in deciding the order of evidence is to ask who has the onus of establishing the central affirmative proposition in the proceedings: Harris v AGC (Insurances) Ltd (1984) 38 SASR 303 Olsson J at 308. It is necessary to have regard to the substance of the issues and not to technical form: Phipson on Evidence 13th Ed. paragraph 4.05.

In this matter the plaintiff's claim is for monies due and owing by the defendant for work done by the plaintiff for the defendant in the usual course of the plaintiff's business as consulting town planners and economists. The defendant has admitted liability but disputes the quantum of the claim.

In his counterclaim the defendant claims:

The plaintiff was, through its agent, negligent in its advice to the defendant.

That the plaintiff	is liable	for damages	for the loss sustained.

The plaintiff disputes liability and quantum on the defendant's counterclaim.

I consider that the plaintiff should be dux litis in these proceedings for the following reasons:

There are obviously a number of issues for decision in the substantive hearing. However, one of the central affirmative propositions in the proceedings is the quantum of the plaintiff's claim, the onus of which lies upon the plaintiff. The defendant bears the onus of proof on the question of negligence alleged by the defendant and the quantum of damages for any loss

sustained	as the result of  any such negligence	on the part of the plaintiff.

Counsel for the plaintiff argues that the defendant should proceed dux litis so that the plaintiff will be able to answer the claim for alleged negligence. I am not persuaded that is a reason to depart from the well established practice that the plaintiff is dux litis where the plaintiff bears the legal onus of proof on any question, in this case the quantum of the plaintiff's claim.

Nor am I persuaded that in the context of this case the correct test to apply is that set out in Abrath v North Eastern Railway Company (1883) 11 QBD 440  Bowen LJ at 456. That is who will succeed if no evidence is called by either party at the outset of the trial.

Finally, there is no evidence, or circumstances, which suggest that the plaintiff will be unfairly prejudiced if the plaintiff proceeds dux litis.

The established principles and the rules of this court provide that the plaintiff will proceed first where the burden of proof on a question rests on the plaintiff.

I do not consider there is reason in this case to depart from the established principle.

Accordingly, the plaintiff's application that the defendant be dux litis is dismissed.

I confirm that the plaintiff is dux litis.

I will hear counsel on the question of costs.