AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Dr Kirstin McGoldrick and Natascha Tunkel, KNOETZL HAUGENEDER NETAL GmbH
4.6 Costs of Interim Applications/ Motions In general, the “loser pays” principle applies. Depending on the subject of the interim motion, this principle applies for final and binding deci- sions upon the interim motion. Alternatively, the decision regarding costs is made depend- ent upon the outcome of the final decision in the main proceedings. In general, courts decide which party is required to pay costs along with their dispositive decision regarding the main claim. Other decisions may include an order on costs if the obligation to pay costs does not depend on the outcome of the proceedings (eg, dismissal of a third-party intervention or a challenge to a judge or expert witness on the basis of bias). 4.7 Application/Motion Timeframe There is no fixed time limit within which a court must deal with an application. Parties are never- theless protected against unreasonable delay by Article 6 of the European Convention on Human Rights and Article 47 on the European Charter of Human Rights, which guarantee an impartial tribunal within reasonable time. The court is thus required to provide prompt and effective action. If a court does not render a decision or order within reasonable time, the interested party may file a request to establish a deadline for the court.
Document Production in the Proceedings In civil proceedings, a party may be ordered by the court to produce evidence at its disposal if the court considers such evidence material, on the court’s own initiative (this rarely occurs) or upon request by the other party. If a party does not comply with such a court order, there is no enforcement available. The court will consider the refusal in its assessment of evidence, and adverse inferences may be A party may, in the proceedings, request the court to order a third party to provide a copy of a specific document if: • substantive law requires the third party to produce the document; or • the document may be of joint use to the par- ties (as in the case of a written contract). The requesting party must: • present plausible reasons for believing that the document is in the possession of the third party; and • accurately describe the contents of the docu- ment. Enforcement In contrast to the document production order addressed to a party, the production obligation of a third party is given rise through an enforce- able court order. The court may impose a fine for non-compliance. Ultimately, contempt of court findings may even lead to imprisonment for a period of up to two months. In practice, how- ever, such orders are rarely issued against third parties. drawn by the court as finder-of-fact. 5.2 Discovery and Third Parties Prerequisites to Order a Third Party
5. Discovery 5.1 Discovery and Civil Cases No Pre-trial Discovery
There are no pre-trial discovery procedures in Austria. Evidence can be secured in specific cir- cumstances, but otherwise production of docu- ments and taking evidence takes place within the actual court proceedings.
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