In a class proceeding, the plaintiffs sought directions for a modified trial procedure to determine the first certified common issue concerning the interpretation of licences of occupation and whether they established a fixed property boundary through a contour line.
The defendant argued the issue should proceed by way of a summary judgment motion supported by affidavits and expert reports.
The court considered the “full appreciation” test for summary judgment and the anticipated need for contested expert survey evidence.
Concluding that summary proceedings would not allow adequate assessment of the expert evidence, the court directed that the common issue proceed by a modified trial procedure with expert reports, an agreed statement of facts, limited discovery, and viva voce expert testimony.
Case management conferences were ordered to establish timelines and further procedural directions.
