Arguing your case

The Judge will ask you to present your case first as you made the claim and started the case. You should:

• give a summary of your case
• point out evidence that supports your case
• tell the court which witnesses you will call
• point out any parts of the respondent's affidavits and evidence that you disagree with or any places where there are inconsistencies.

You can speak from prepared notes. This can be helpful if you are nervous or are concerned you might forget to mention something. For more information, see Step by step guide - Preparing for the hearing.

If the Court made orders that you do not have to attend a hearing in person, you will not need to present your case at court, but you will still need to prepare, file and serve evidence. The Judge will look at the evidence and make a decision without the parties being present. This is sometimes called having your case ‘heard on the papers’. If you are not sure if you have to go to a hearing, you should get legal advice​.​

In the Federal Circuit and Family Court of Australia evidence can be given orally or by affidavit or statement. Usually, the affidavit or statement has already been filed. On the day of the hearing, the witness may be asked to swear or affirm that the contents of their affidavit is true. They will then be questioned by the other party (called 'cross examination'). In cases using the small claims procedures, the Judge:

• can allow the case to be heard in an informal manner
• does not have to worry about technicalities.

If you have documents or records and you want to use them as evidence, they can be made part of your affidavit or statement. This can be done by either 'annexing' or 'exhibiting' them to the affidavit or statement.

For more information on how to do this, see Prepare your evidence, in Going to the Federal Circuit and Family Court, and Affidavits and statements.

You will usually have to stand next to the witness box and make an 'oath' or 'affirmation'. Both are promises to tell the truth and the Judge won't be more likely to believe you if you use one over the other. An oath has religious meaning and an affirmation does not. The court officer will read the oath or affirmation and you should respond 'I do'.

You may have already filed an affidavit or statement, which tells the Court your version of what has happened and why you believe you are owed unpaid wages or entitlements. On the day of the hearing, you may be asked to swear or affirm that the contents of your affidavit is true, if you filed one.

If you did not file an affidavit or statement, you may be asked to give your evidence in court. You can only give evidence about what you saw or what was said to you directly.

The Judge may ask you questions or ask you to explain some things in more detail. The Judge may also ask you to move on to another point if they feel you have said enough about a certain issue or you are speaking about something that is not relevant to the case. 

After you have given your evidence, the respondent or his or her lawyer will ask you some questions. This is called 'cross-examination'. You should:

• listen carefully and think about each question before you answer
• ask that a question be repeated if you don't understand it
• admit if you don't know the answer to a question
• speak loudly, clearly and slowly
• give exact details, for example if someone swore, tell the Court the words that were used
• try not to get angry, even if the respondent's lawyer seems to be rude or aggressive
• ask for a break if you get upset.

If there are any issues you want to clear up that are raised in cross-examination, you can give further evidence. This is called 're-examination'. The Judge may ask you if there is anything you want to say in relation to the cross-examination.

Your witnesses should wait outside the courtroom until it is their turn to give evidence. A court officer will bring them into the courtroom and take them to the witness box where they may be asked to make an oath or affirmation.

You should first ask the witness to tell the Court their name, address and occupation. You may have already filed an affidavit or statement made by your witness. You can ask your witness if their affidavit or statement is true and correct. You can ask them questions that are relevant to your case. Your questions should allow the witness to give their evidence in their own words. The other side may object if you try to lead the witness to give a certain answer.

Once you have finished asking each of your witnesses questions, the other side will have a chance to cross-examine them. After the cross-examination, you may have a chance to ask the witnesses any further questions. This is called 're-examination'. You should only re-examine your witness if you want to clear up issues raised in the cross-examination.

If your witness is part way through their evidence and there is a break, you should not talk to your witness during the break.

After you and your witnesses have given their evidence, the respondent (your employer) and the respondent's witnesses may give their evidence. After each of the respondent's witnesses have given evidence, you can cross-examine them.

When asking the respondent's witnesses questions, you should:

• use direct questions that require a yes or no answer, if you can
• try to avoid asking the respondent's witnesses questions that allow them a full explanation.

It is important that you don't interrupt witnesses when it is their turn to speak. If they are not answering your questions you can ask the Judge to direct them to do so. You can also make some notes of anything you want to comment on or clarify, and ask them when they finish answering.

Don't speak rudely or abusively about the other party or witnesses. Stick to the facts and the evidence and be calm and polite.

For more information about what happens after arguing your case, see Step by step guide - Presenting your case at the ​hearing.

After both sides have presented their evidence, you will usually both be given a final chance to talk. This is called 'final submissions'.

Final submissions can cover:

• a summary of your evidence
• the problems and weaknesses of the employer's evidence
• what you say about how the law applies to your case
• what orders you are asking the Court to make.