Preparing noise order application

You should make sure you write down your hearing date and time. You should also check the address of the court. You can find this on the Local Court website.

If you won't be able to attend court on the hearing date, you should ask for an adjournment. An adjournment will postpone the hearing to another date.

You should call the court well before your hearing date and ask them if you can get an adjournment.

The court may ask you to complete an Application to Vacate a Hearing Date form. You can get copies of the form from:

• any Local Court
• the Local Court website.
  

They may ask you to send a letter or fax to the court confirming:

• you would like an adjournment
  
• the reason why you cannot attend court on the hearing date, for example, a medical emergency
  
• any upcoming dates you won't be available.
  

You should call the court to confirm they have received your request and placed it on your court file. Call the court the day after your original hearing date to confirm whether your case was adjourned and the date it was adjourned to.

You need to gather evidence that supports your case. This may include:

• your witness statement
  
• other witness statements
  
• reports from police, council or experts.
  

Your evidence should show that on the 'balance of probabilities' (that it is more likely than not) that the noise the other party is making is 'offensive' and is likely to occur again.

Your witness statement

Your witness statement covers the things you want to say.

You may cover things like:

• what the noise is
  
• details about any characteristics of the noise that make it particularly irritating
  
• how long the noise lasts
  
• how often the noise occurs
  
• how the noise is affecting you.
  

You should gather other supporting evidence which you can refer to and attach to your witness statement. For example, you could keep a record of every time the noise occurs and how long the noise lasts. You can then refer to these records in your witness statement.

Other witness statements

You should ask anyone else who is affected by the noise to also provide a witness statement, for example, your neighbours.

Statements from your neighbours explaining how the noise affects them will strengthen your case. You should make sure that anyone who provides a witness statement is willing to come to court to give evidence.

Reports from police, council or experts

If you made a previous complaint to the police or the local council, you should get copies of any complaint records. The police or council may have also measured the noise using a sound level meter. You can use these measurements as evidence in your case.

If you don't have any formal measurements of the noise, you can consider finding a noise expert and ask them to prepare a formal report about the noise levels.

Before retaining an expert, you should get legal advice.

If the magistrate made orders that you exchange evidence with the other side, you will need to follow the orders set by the magistrate or registrar at the mention.

You may have to file and/or serve the evidence on the other side by a set date.

'File' means that you must give a copy to the court. You can do this by:

• going to the court registry in person
  
• sending the documents by post or fax
  
• attaching the documents to an email (if the registrar or magistrate agrees).
  

'Serve' means giving a copy to the other party. You can serve your evidence by:

• giving the documents in person
  
• sending the documents by post, fax or email.
  

If the other party has a lawyer representing them, you will need to serve the evidence on their lawyer.

You should keep the originals of all your evidence and give copies to the court and the other side.

If the magistrate has made orders that you exchange evidence with the other side, you will get to see the other party's evidence before the hearing.

You should take some time to read the other party's evidence so that you understand their case.

If it seems that the other party has not followed orders to exchange evidence, you should contact the court and find out if anything has been filed. If witness statements have been filed, ask the court for a copy or contact the other party and ask for a copy. If nothing has been filed you can let the registrar or magistrate know when you attend court. The registrar or assessor may adjourn the hearing or disregard some of the other party's evidence.

It is sensible to think about whether there is a way you could settle the dispute. Think about the evidence that the other party has presented.

If you have not received legal advice before, try to get legal advice about your case.

If you can settle the case, you should tell the court as soon as possible. Arrange for your agreement to be put into writing.  If you want the court to make orders to confirm your agreement you should draft written terms of settlement.

If you want someone to attend court to give evidence you should contact them and ask if they will come to court or if they can give you the documents you need.

If you are concerned they may not attend, that they won't give you the documents you need, or if you want to get hold of documents that someone else has, you may issue them with a subpoena (pronounced 'supeena').  There are three sorts of subpoenas:

1. Subpoena for production - a court order to give documents to the court 
2. Subpoena to give evidence - a court order that requires a person to give evidence at a hearing 
   
3. Subpoena for production and to give evidence - a court order that requires a person to give evidence at a hearing and to give documents to the court.
   

For instructions and samples see: 

• Instructions: Subpoena for production (PDF, 89KB)
• Sample: Subpoena for production (PDF, 108KB)
• Instructions:  Subpoena to give evidence (PDF,89 KB)
• Sample: Subpoena to give evidence (PDF, 128KB)

The subpoena must be served on (given to) the person it is addressed to on or before the last date for service.   A person doesn’t need to comply with a subpoena if it is served out of time.

You can pay for a professional process server to serve the subpoena or do it yourself. 

You can serve a subpoena by:

• handing it to the person it is addressed to 
• emailing it to them, or 
• posting or faxing it to their residential address. 

When you serve the subpoena you must also give the person or organisation you are serving with the subpoena some money, called 'conduct money'.

The amount of money must be enough to cover the cost of travelling to and from the court or the cost of looking for, photocopying and sending the documents to the court. 

The conduct money can be paid by cash, bank cheques, or money transferred electronically, through online banking or other digital payment methods. Prepaid travel options, such as petrol vouchers, may also count as conduct money.

The recipient doesn’t have to comply with a subpoena unless they are given or offered conduct money a reasonable time before they need to attend court. You may be ordered by the court to pay the amount requested by the person subpoenaed. 

 Before you serve your subpoena, you should contact the subpoenaed person to find out how much conduct money they will require to comply with the subpoena. 

The amounts which can be claimed are based on rates set by legislation. For the latest Scale of Allowances Paid to Witnesses, see the circular C2023-02 Meal, Travelling and Other Allowances for 2023-24 on the NSW Government website.

You should take the following things with you to the hearing:

• your application notice
  
• all your evidence, including the originals and at least three copies of each of your documents as well as copies of the witness statements that you have filed and served
  
• copies of the other party's witness statements and evidence
  
• a list of questions you would like to ask any witnesses
  
• your submissions
  
• a notebook and pen to make notes
  
• highlighters and post it notes to mark important information.
  

Before you go to court for the hearing, it is helpful to write down what you plan to say to the registrar or magistrate. These are called your submissions. Your submissions should include a summary of:

• what your application is about
  
• the reasons why you think a noise abatement order should be issued
  
• the evidence you have to support your case
  
• any weaknesses in the other party's case
  
• any laws or cases you rely on.  
  

You may also want to prepare any questions you want to ask your witnesses and the other party's witnesses.

After preparing your case, the next step is to go to court and present your case at the hearing.

For more information about presenting your case at the hearing, see Step by step guide: The hearing for a noise abatement order.