Step by step guide - Presenting your case at the Local Court hearing

Hearings in the Local Court are heard by a magistrate. The court you have to attend will be listed on the application for a Fencing Order. It will also list the time you have to be there.

It is a good idea to arrive at least 15 minutes early to give you time to:

• go through security
  
• find the courtroom
  
• take a seat
  
• tell the court officer your name and that you are present.
  

If you are running late for the hearing, it is important that you ring the Local Court registry and let them know.

Although you have been told to go to court at a certain time, for example 9:30am, this does not mean your case will be heard at that time. There are often many cases listed on the same day and you may have to wait until your name is called. You can take a seat in the courtroom or, if the courtroom is full, you can wait outside. Make sure you do not leave and are close enough to hear your name called. If you are not there when your name is called, your case may be heard without you.

The magistrate may close the courtroom for morning tea (usually around 11:30am) and lunch (usually from 1:00pm to 2:00pm). You will have to leave the courtroom during these breaks. The court officer or the registry can tell you what time the courtroom will reopen.

It is possible that you could be at the court for a few hours, and sometimes for most of the day, so you should make arrangements with your work or child-care if necessary.

 Don’t forget to turn off your mobile phone before going into the courtroom.

You should refer to the magistrate as 'Your honour'. You should stand and bow when the magistrate enters or leaves the courtroom. You should always be polite to the magistrate, other court staff and your neighbour. Refer to your neighbour or their lawyer as Mr/Ms and their surname.

The person applying for a Fencing Order is called 'the applicant'. The other person is called 'the respondent'. 

Once your case is ready to be heard, you should sit at the bar table at the front of the courtroom. Get out your papers and arrange them so you can find things when you need them during the hearing. Only put items on the table that you need. Do not leave your bags on the bar table.

The hearing is your chance to convince the magistrate that the Fencing Orders you want should be made. Remember that the magistrate is only interested in the evidence that supports your case and this is what you should focus on. 

Sometimes you or your neighbour may need to ask the magistrate to postpone the hearing to another date. This is called an 'adjournment'. The magistrate may not agree to this unless there is a good reason. You should provide any evidence you have to support your request for an adjournment.

The applicant will be asked to present their evidence first. Usually, the applicant themselves will give evidence from the witness box. The evidence they should cover includes:

• who owns the property
  
• when they served the Fencing Notice
  
• how they served it
  
• when they made an application for a Fencing Order
  
• what orders they want
  
• what discussions they have had with the respondent
  
• what agreements have already been reached with the respondent
  
• whether there are any documents or photos they would like the magistrate to see.
  

After the applicant has given their evidence, the respondent can ask the applicant any questions. This is called 'cross-examination'.

The applicant can then ask their witnesses (if they have any) to give evidence, including a spouse or a fencing expert. After the witness has given evidence they will be cross-examined by the respondent.

The respondent will then get the opportunity to give their evidence. The evidence they should cover includes:

• who owns the property
  
• whether they received a Fencing Notice
  
• what discussions they have had with the applicant
  
• what agreements have already been reached with the applicant
  
• what they want to say about the applicant's evidence
  
• why they do not agree with the orders the applicant is asking for
  
• whether they have any documents or photos they would like the magistrate to see.
  

After the respondent has given their evidence, the applicant may cross-examine the respondent.

The respondent can then call any other witnesses they want to give evidence, including a spouse or a fencing expert. After the witness has given evidence they may be cross-examined.

The magistrate will usually make a decision on the day of the hearing. Sometimes the magistrate will take a short break to think about your case before making a decision.

The magistrate will tell you their decision verbally. They will tell you the reasons for their decision and what orders they will make. The court will not send you anything in writing, but if you want a copy of the orders you can ask the court registry to give you one.

If you miss the hearing and you want to know what happened you should contact the court. You can ask the court registry for a copy of the orders that were made but this will not tell you the magistrate's reasons for making a decision. If you want to know the reasons you will need to order a transcript. A transcript is a typed copy of what was said at a hearing. It is prepared from the tape recording of the hearing.

If the magistrate decides that the existing fence is a sufficient dividing fence, no orders will be made for fencing work.

If the magistrate decides that the existing fence is not a sufficient dividing fence or there is no existing fence, then orders may be made about what fencing work should be done and how the costs should be shared. If you and your neighbour have not provided quotes to the court, the magistrate may adjourn the case so that you can get quotes.

For information about appeals and what can happen if the court's orders are not followed by you or your neighbour, see After the decision.