Reviewing Local Court decisions

You should lodge this application as soon as possible. It is a good idea to go to the court as soon as you realise that you have missed your court date and lodge the application.

You cannot lodge an application if more than two years have passed since the court made its decision. You also cannot lodge an application for annulment if you have entered a plea by lodging a notice in writing (Written Notice of Plea). In some circumstances it may be possible to make an application to the Attorney General to refer your case back to the Local Court for review. This is very rare. You should get legal advice about whether this may be possible in your case.

You must write your personal details: name, address and details of the case you had at court including the last court date. You also need to explain why you did not attend court. Include any documentary evidence with the form and make sure you keep a copy for yourself. See: What do I have to prove.

Your application will be listed at court. This may be on the same day that you lodge the application or it may be another day and you will have to come back. The registrar of the court will notify you, and any other person affected by the decision, when and where

the application will be heard. It may be heard without the parties being present, in open court or in the magistrate’s chambers.

If it was a traffic or criminal matter the police will be notified. If it was an Apprehended Violence Order (AVO) the other parties involved with the AVO will be notified. They are entitled to attend court.

The court may suspend the order made in your absence until the application for annulment has been heard. This will not happen in relation to an AVO made against you unless you make an application to have the AVO suspended. You should check with the registrar of the Local Court to confirm what will happen in your case.

If you had bail to attend court and didn’t attend you may be arrested on a warrant and the court will have to decide whether to release you on bail until your application for annulment is heard. You may need to convince the court that you will attend on the next occasion if granted bail. For more information see the Legal Aid NSW brochure A guide to bail.

When you go to court you will need to explain why you did not attend court on the previous date. You may be required to give evidence. You may also call other people to give evidence on your behalf. If you give evidence the other people involved in your case (usually the police prosecutor) can cross- examine (question) you about your evidence. If you have witnesses they will have to stay outside the court room until it is their turn to give evidence. The other people involved in your case, for instance the prosecutor, can also cross-examine these witnesses on their evidence.

You must satisfy the Local Court that:

• you were not aware of the proceedings, or
• you could not take part in the proceedings because of accident, illness, misadventure or other cause, or
• having regard to the circumstances of your case, it in the interests of justice for the application being granted.

If you have any evidence – witnesses or documents – that could help your application you should take them to court. For example,

if you were in hospital take a report from the hospital showing when you were admitted and discharged and what was wrong with you. If you were sick and attended a doctor, ask for a certificate which explains why you were not able to attend court and what was wrong with you. If the certificate only says that you were not able to go to work it may not be enough to satisfy the magistrate to grant your application.

It is a good idea to give copies of any certificates or reports to the other people involved in your case (usually the police prosecutor) before the court case. This is so that they can check that they are genuine. If you don’t do this you may not be allowed to give them to the magistrate.

The court will annul the decision. This means that the conviction, penalty or order made in your absence no longer has any effect. The case will go ahead as if the previous order had not been made.

If it is a criminal or traffic matter you will be required to tell the court whether you are pleading guilty or not guilty. If it is an application for an AVO you will need to tell the magistrate whether you consent to the order and if so to what conditions.

If you are pleading not guilty or are defending any application the case may have to be adjourned (delayed) to another day for witnesses to attend court to give evidence or for other reasons.

The conviction, penalty or orders made in your absence will take effect.

Yes. You can appeal to the District Court by lodging an appeal in writing with the registrar of any Local Court. You should lodge your appeal within 28 days of the refusal decision being made in the Local Court. If you don’t, you can seek leave to appeal within three months of the decision. You will have to explain why you did not lodge the appeal within 28 days. You cannot appeal if your appeal is lodged more than three months after the refusal decision in the Local Court. You cannot ask the District Court to annul any conviction, penalty or sentence made in your absence unless the Local Court has first refused your application.

Legal Aid NSW has a brochure Appealing to the District Court which provides more information.

If you are successful in your appeal against the Local Court’s decision refusing to annul your conviction or sentence, the District Court will send your case back to the Local Court which will hear the case again.

Generally you are only able to lodge one application to annul a Local Court decision in relation to the same case.

If you lodge the application and don’t attend court on the day it is to be heard, your application is likely to be dismissed. This means that the previous order will take effect. You are able to apply for leave to lodge a second application. You would have to have a very good reason for missing court the second time round.

If you have missed court once and have been successful in your application to annul that order (either at the Local Court or on appeal at the District Court) and you miss court again you are able to apply for leave to lodge a second application. You would have to have a very good reason for missing court again.

It is very important that you do not miss court a second time.

You are only able to appeal to the District Court once in relation to an application for annulment against a Local Court decision.

If you were on bail to attend court and you missed your court date you should get legal advice as soon as you can. You may be able to get advice from one of the places listed at the end of this page.

You should telephone the court and ask what happened.

Phone Court Services on 1300 679 272.

If you were on bail to attend court and did not attend, there may be a warrant for your arrest. This means that the police may arrest you at any time. If you are arrested by police you will be taken to court and may apply for bail again. You would have to explain why you did not attend court and satisfy the magistrate that if given bail you will attend court on the next date.

It may be a good idea to go to the police station and ‘hand yourself in’. You may be more likely to satisfy the magistrate that you will attend court on the next occasion if you do this rather than wait until you are arrested by the police on a warrant.

If there was a good reason why you did not attend court and you have any evidence it is a good idea to take that evidence, for

example a medical certificate, with you when you go to the police station.

It may help to tell someone what has happened. You may need a ‘surety’ to get bail again. A ‘surety’ is someone who agrees to pay money to guarantee that you will attend court if granted bail. That person may lose their money if you do not attend court unless you have a very good reason.

You can get legal aid for representation at court if:

• legal aid would have been available for the original proceedings in the Local Court; and
• your application has reasonable prospects of success; and
• you satisfy the Legal Aid NSW means test.