Getting ready for court

Statutes are laws made by parliament and are known as 'Acts' or 'legislation'. The name of the Act will have the year it was made in and which parliament made it. For example:

• Crimes Act 1900 (NSW)

This means the Act was passed in 1900 and is a New South Wales (NSW) law.

•   Family Law Act 1975 (Cth)

This means the Act was passed in 1975 and is a Commonwealth (or Federal) law.

Acts usually have 'Regulations' or 'Rules' connected to them. Regulations have more details about procedure.

To search for NSW Acts, Regulations and Rules, go to the NSW legislation website.

To search for Commonwealth Acts, Regulations and Rules, go to the Federal Register of Legislation website.

Knowing which law applies to your case can help you assess the strength of your case and prepare for any questions the magistrate or tribunal member may ask you in the courtroom.

Common law refers to decisions made by Judges, Magistrates and Tribunal Members. The decisions are made by interpreting Acts, Regulations and Rules and other similar cases.

Common law cases are named after the parties involved in the case and include details so you can find the case. For example:

• Donoghue v Stevenson [1932] AC 52
  - Donoghue is the person who started the case.
  - Stevenson is the person defending the case.
  - 1932 is the year of the decision.
  - AC tells you the case can be found in the law reports called 'Appeal Cases'.
  - 52 is the page number.

To look at NSW cases, go to the Caselaw website or the Austlii website.

Reading cases similar to yours can help you understand the law. You can also refer to some of them at court if you think they support your case.

There are a number of resources you can use to find legal information:

• Other topics on this website
•  LawAccess online
•  Legal Information Access Centre (LIAC)
•  The Law Handbook

Other topics on this website

This website has a number of resources to help people represent themselves at court. It has plain language information including step by step guides, instructions to fill in court forms and sample forms, checklists, frequently asked questions, flowcharts and interactive guides on various areas of the law.  The topics on the this website include: 

• A criminal charge 
• Apprehended Violence Orders 
• Disasters 
• Discrimination
• Fines
• Mental health
• My car or driving offence 
• My family or relationship
• My housing
• My job
• My money
• My neighbour 
• My rights as a...
• Planning ahead
• Someone who died
• Victims rights
• Visas and migration
• I have a different problem

Legal Information Access Centre (LIAC)

The Legal Information Access Centre (LIAC) is a specialist information service of the State Library of NSW. It provides access to high quality information about the law for all members of the community in NSW via the Find Legal Answers website, public libraries, and by working in partnership with key legal sector agencies.

The State Library has extensive legal resources. The Library's general reference staff can assist clients find and use these resources.

For more information, go to the Find Legal Answers website.

Law Handbook

The Law Handbook is one of the key plain language resources in NSW and has legal information on a broad range of legal subjects. It originated in the Community Legal Centre sector and was first published in 1978.

You can find a copy at your local library in the 'Legal Answers Tool Kit'. It is also available online on the Find Legal Answers website.

Evidence is information a party presents to prove their case. There are two types of evidence:

• Oral evidence
• Exhibits

Oral Evidence

Oral evidence may be given verbally by a party to the case, a witness to events or an expert. This evidence is usually given by the person attending court, entering the witness box, taking an oath or affirmation, and answering questions about the circumstances of the case. In some cases, evidence by a party, witness or expert may be given in writing through a written statement or affidavit.

If you want to make sure a witness or an expert attends court to give evidence in your case, you should issue a subpoena to attend to give evidence (pronounced supeena). A subpoena to attend to give evidence is a court order telling someone they have to attend court at a particular time and date to give evidence in a hearing. If the person does not attend court, a warrant can be issued for their arrest.

Exhibits

Exhibits are documents or objects used to support a case. For example, photographs, video footage, bank statements, invoices, repair quotes, receipts, medical records, weather reports and business records.

If you want certain documents from a person or organisation, you can issue a subpoena to produce. A subpoena to produce is a court order telling someone to produce the documents you have requested to the court

 The strongest evidence is usually evidence from an independent witness (not a family member or friend) who saw what happened, and exhibits created at the time the events in dispute happened. ​

The rules of evidence are set out in the Evidence Act 1995 (NSW). The Act sets out what evidence may be considered by a court when it makes a decision in a case and is meant to ensure that only fair and reliable evidence is considered.

Evidence that can be considered is called 'admissible evidence'.

The rules of evidence can be difficult for a person without a lawyer to understand. Some important rules of evidence include:

•  evidence must be relevant to the case
• evidence must not be 'hearsay'. This means that witnesses can only give evidence about what they saw or heard, not what someone else told them happened
• evidence must not be an opinion. This means that a person can't give evidence of a belief or judgment that is not based on any proof or certainty (unless the witness is an expert). For example, an opinion would be to say: "The defendant signed the contract so he must have known about the interest rate".

The rules of evidence are followed in courts, except in the Small Claims Division of the Local Court. The rules of evidence are not generally followed in tribunals.

The person who starts a case, usually the prosecutor or plaintiff, has the responsibility to prove their case. This responsibility is sometimes called the 'burden of proof' or the 'onus of proof'. A prosecutor or plaintiff does this by presenting evidence to the court.

In a civil case, for a plaintiff to win they must prove 'on the balance of probabilities' that their claim is true.

In a criminal case, for an accused person to be found guilty of a criminal offence, the prosecutor must prove 'beyond reasonable doubt' that the person committed the offence. This is a higher standard of proof than for civil cases.

While it is up to the plaintiff or prosecutor to prove their case, this doesn't mean that a person defending a case shouldn't present their own evidence. For example, in criminal cases, sometimes a defendant has to show sufficient evidence to raise a defence and in civil cases having evidence that contradicts the plaintiff's claim will be helpful. ​​

A chronology is a timeline of events. A chronology should have the dates of relevant actions or events, a short description of what happened on each date and any documents you have relating to that date.

Case study -Bob and Jacqui​

Bob put an ad in the local paper, looking for handyman work. Jacqui saw the ad and asked Bob to come over to her place. Jacqui and Bob walked around the house and looked at the work Jacqui wanted Bob to do. Jacqui agreed to pay Bob's hourly rate and to pay for the cost of any materials. Bob finished the work in 5 days and sent Jacqui a bill. Bob waited for 30 days but Jacqui didn't p​​ay him. Bob called Jacqui a couple of times but she still didn't pay him. Bob decided to prepare a chronology of events before writing a letter of demand.​

Sample: Sample chronology of ​events

There are a number of interpreting services that may be able to assist you when you are preparing your case and if you need to contact the court, the other party or another organisation, including:

• Translating and Interpreting Service
• The Community Relations Commission
• National Relay Service
• Deaf Connect
• Other options

Translating and Interpreting Service

TIS National (TIS) is an interpreting service provided by the Department of Immigration and Border Protection. TIS has a range of interpreters speaking various languages. TIS can arrange an interpreter to assist over the phone or to attend in person.

You can call TIS on 131 450 to make an enquiry. 

For more information, go to the TIS National website.

Multicultural NSW Language Services

Multicultural NSW Language Services provide comprehensive interpreting and translation services in many languages and dialects, including Auslan. Their services are available to all New South Wales government departments and agencies, as well as private and commercial organisations, community groups and individuals.

For more information, go to the Multicultural NSW website.

National Relay Service

The National Relay Service (NRS) is a phone service for people who are deaf, hard of hearing or have a speech impairment.

For more information, go to the National Relay Service website.

Deaf Connect

Deaf Connect provides interpreting and captioning services in a range of settings where deaf, hard of hearing and deafblind people as well as hearing people are able to communicate effectively with each other. They also provide deaf interpreters for deaf and deafblind people who require additional communication support.  They can provide services for you either on-site or remotely via Video Remote Interpreting (VRI).

For more information, go to the Deaf Connect website.

Other options

You can consider asking a support person to help you. They may be able to make calls for you, go with you to mediation or conciliation or to a meeting with a lawyer.

If you need an interpreter to help you when you go to court you can contact the registry office of the court or tribunal that is hearing your case and tell them that you need an interpreter. Contact details for the registry should be on your court or tribunal documents.

The registry staff might be able to arrange an interpreter to come to court for you, or you may have to ask the Judge, Magistrate or Tribunal Member for an interpreter when you first go to court. Your case may then be adjourned (postponed) until another date while arrangements are made for an interpreter.

If the registry staff cannot organise an interpreter for you, you will need to organise the interpreter yourself. Multicultural NSW Language Services provides interpreting and translation services. For more information, go to the Multicultural NSW website.

If you want to bring a support person with you to court you can, but they may not be able to act as an interpreter. It is always best to use a qualified interpreter.

Sometimes an interpreter will be provided to you for free, and sometimes you will need to pay.

Local courts provide free interpreters for:

• criminal cases
• applications for an AVO, and
• breach of an AVO

In local court civil cases you will need to pay for an interpreter. If you receive a pension or benefit, or have a low income, you can ask to be exempt from paying the fee.

If you are requesting an interpreter through Multicultural NSW Language Services, when you complete the Interpreter Request Form, under 'Any special requirements', you will need to ask for a fee exemption and explain why you are asking for an exemption. Information on fees and guidelines for fee exemption are on the Multicultural NSW website.

If you win your civil case, the cost of the interpreter could be included in the costs that the other party pays to you.

In the District and Supreme Court, free interpreters are provided for defendants and witnesses in criminal cases. In civil cases, parties have to arrange and pay for their own interpreters.

In tribunals, such as the NSW Civil and Administrative Tribunal (NCAT) free interpreters may be provided to help you.

Some courts and tribunals may be able to provide information about going to court in large print, audio, electronic or braille format if you have a vision impairment, print or reading disability. 

The  Department of Communities & Justice website also has information about going to court, translated in Auslan. For more information, see the video A deaf client's guide to Auslan interpreting using a video link in Courts NSW. 

If you have a cognitive disability and are going to court, see the video So you have to go to Court!.

For more information, see Access for people with disability on the Department of Communities & Justice website.

If you have a disability, contact the court or tribunal you need to attend to find out about access options available to you. The court may be able to arrange disability access parking for you.

For more information, see Access for people with disability on the Department of Communities & Justice website.

Some services provide support for people with a disability who need to go to court or interact with the law. These are:

• Justice Advocate Service (JAS)
• Disability Advocacy NSW

Justice Advocacy Service (JAS)

The Justice Advocacy Service (JAS) provides support for young people and adults with a cognitive impairment who come into contact with the criminal justice system. This can include victims, witnesses, suspects and defendants.

If you have a cognitive impairment, JAS can arrange for a support person to be with you when you are dealing with police, courts and lawyers. This is a service that operates around NSW, including rural areas.

For more information, see Justice Advocacy Service (JAS) on the Intellectual Disability Rights Service (IDRS) website.

Disability Advocacy NSW

If you have a disability, Disability Advocacy NSW can provide support to you if you are going to court, dealing with police or a lawyer. They can also help link you up with the right people to help you (for example, a lawyer) and talk over a problem with you. 

For more information on Disability Advocacy, visit the Disability Advocacy NSW website.

Some services may be available to make it easier for you to attend court. For example:

• Infra-red hearing loop
• Other support

Infra-red hearing loop

Courts can arrange for an infra-red hearing loop to be available on the day of a court hearing.

If you are collecting an infra-red hearing loop, contact the court office a few days before you attend to confirm that it has been ordered.

Other support

You can download and fill in a Request for court assistance form from the Local Court website to let the court staff know what access you require and what support you intend bringing to a particular hearing. 

For more information, see Access for people with disability on the Department of Communities & Justice website.

The NSW Department of Communities & Justice is committed to providing access to services for people with disabilities throughout the State and in all of its courts and tribunals. If you have a disability and are going to court, and need some h​elp you can contact your local court or Diversity Services.

For more information, see Contact us on the Department of Communities & Justice website. 

There are certain things you need to do:

• When you arrive at court
• When entering the courtroom
• When the court takes a break

When you arrive at court

When you arrive at court you will usually find the court list on a wall o​​r notice board. You should check the list and make a note of what number your case is in the list, and which courtroom you need to go to.

For information about how to find your courtroom, you should watch the video Finding your courtroom. ​

This video is available with the ​​audio description.

If you see a court officer you can let them know you have arrived and that you don't have a lawyer.

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 scheduled on the same day and you 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 the court building and are close enough to the courtroom to hear the court officer call your name. If you leave, or are not there when you are called, your case can be dealt with in your absence.

When entering th​​​e courtroom

Before you go into the courtroom you should:

• turn off your mobile phone or pager
• remove your hat and sunglasses
• stop eating, drinking or chewing gum.

When you go into the courtroom you should:

• bow your head facing the judge, magistrate, registrar or assessor as soon as you walk in
• take a seat in the back of the courtroom
• be quiet while other cases are being dealt with.

You are not allowed to use a mobile phone or record anything in the courtroom but you can take notes during the hearing of your case.

When your case is called, you need to move to the table, called the 'bar table', which faces the judge, magistrate, registrar or assessor. Bring all of your documents to the table with you. You can place your files and documents on the bar table, but it's best to put your bags and coats on the floor next to you.

When the court​ takes a break

The magistrate or assessor may close the court for morning tea, usually around 11:30am, or for lunch, usually from 1:00pm to 2:00pm. You will have to leave the courtroom during these breaks. You can check with the court officer or the registry 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 childcare, if necessary.

When you speak in court it is important you know who you are talking to. When you speak in court:

• a Registrar is called 'Registrar'
• a Magistrate or Judge is called 'Your Honour'
• an Assessor is called 'Sir' or 'Madam'.

When your case is called, you need to move to the bar table. You should stand up when speaking to the Registrar, Magistrate, Judge or Assessor, and when they are speaking to you. Sometimes they will give you permission to sit down, but otherwise you should stand at the bar table.

The first thing you need to say is your name and your role in the case. For example: "My name is Mr/Ms/Mrs/Miss X and I am the plaintiff".  Your role, for example, plaintiff, applicant or defendant, may be written near your name on the court documents.

The microphones at the bar table do not make your voice louder. They are used to record each case. You will need to speak loudly enough for the officer on the bench to hear you.

When the Judge, Magistrate, Registrar or Assessor is hearing your case, make sure that you listen to what is being said and don't interrupt. You will be given the chance to speak so don't try to talk over the other person.

Always use polite and respectful language when speaking in the court. You should ask for things to be repeated or explained if you can't hear or don't understand what has been said.

When the other party is speaking, you should sit down at the bar table.

Make sure you are dressed neatly. You do not need to wear a suit but you should not wear singlets, thongs, untidy, revealing or ripped clothing. ​​

If your case is in a court, the usual rule is that the party who loses the case will be ordered to pay legal costs to the party who wins the case.

If your case is in a tribunal you are unlikely to be ordered to pay legal costs to the other party, even if you lose the case. In tribunal cases, the general rule is that each party will pay their own legal costs whatever the outcome of the case. This is also the general rule in family law cases. You may be ordered to pay costs in a tribunal or a family law case in exceptional circumstances. Examples of exceptional circumstances are:

• if you caused delays in hearing the case, because you failed to turn up or were not prepared, and did not have a good explanation
• if you made it difficult for the other party to prepare for the hearing because you failed to file documents when you were directed to.

In criminal law cases, in addition to legal costs, you may have to pay other costs in criminal law cases such as a court costs levy and victims support levy as well as criminal compensation.

A 'court costs levy' is a fee for having your case heard at court.

A victims support levy is a fee that goes into a government fund, which is used to pay financial assistance to victims of crime.

If you are convicted of an offence, the court can make an order that you pay the victim an amount of money to compensate them for loss or injuries. If the court makes an order that you have to pay criminal compensation, you should get legal advice.

In some kinds of court cases, the amount of legal costs that you can be ordered to pay are set down in court rules. For example, costs are fixed or limited in: probate cases; work injury cases; debt cases with a default judgment; and cases in the Small Claims Division of the Local Court.

In most court cases the court will order costs to be paid 'as agreed or assessed'. This means that the parties can try and come to an agreement about how much costs should be paid. If they can't reach agreement, they can get a costs assessment to decide what the amount should be.

Particular words are often used in courts when costs orders are made, including:​

​'No order as to costs'

This me​​ans that no party is awarded costs against the other. Each party pays their own legal costs.​

'Costs in the cause'

This is another way of saying that the party who lost the case must pay legal costs to the winner of the case. Som​​etimes there will be a preliminary or interim hearing about some issue in the case. This is called an 'interlocutory hearing'. The court will commonly order that the costs of the interlocutory hearing will be costs in the cause. This means that the costs of the interlocutory hearing will be paid by the party that loses the case in the end.

'Costs reserv​ed'

This means that the decision about payment of costs for an interl​ocutory hearing will not be made until the end of the case. In most cases, the party who lost the case will be ordered to pay these costs.

'Costs of ​the day'

This means that a party is ordered to pay costs to the other ​​party immediately or within a short period after losing an interlocutory hearing.

'C​osts thrown away'

This means that a party who does not attend a hearing, or is not pre​​pared for the hearing and asks for an adjournment, is ordered to pay costs to the other party because of their wasted time in preparing for and attending court that day.

If you want a costs assessment, you have to apply to the Supreme Court. The filing fee is either:

• $100
• 1% of the unpaid bill or
• 1% of the total costs in dispute.

You will also have to pay an hourly rate for the assessor's time. The costs assessor considers what is a reasonable amount for the time and skill involved in a lawyer preparing the case and representing their client in court.

For more information, go to the costs assessment section of the Supreme Court Costs Assessment website. ​

An appeal involves an application to have the decision of a Court or Tribunal cancelled or changed. An appeal may result in an internal review of the decision, for example, by an appeals panel, or it may involve a higher court looking at the decision again.

Whether you can appeal and what parts of the decision you can appeal against, varies between different types of cases.

There is usually a time limit for filing an appeal. It is commonly 21 or 28 days from the date of the decision. In some cases, the Court hearing the appeal can choose to extend the time limit.

If you want to appeal a decision, you should get legal advice.

Who hears your appeal will depend on which Court or Tribunal heard your case and what your case was about. There are some types of cases where you have no right of appeal.

For a guide on where you may be able to appeal to, see the table below.

Before you file an appeal, you should get legal advice. You will need advice about:​

• whether you have a right to appeal
• whether you need leave (permission) to appeal
• what the time limit is to appeal
• whether there are any restrictions on that particular kind of appeal
• whether your appeal is likely to be successful
• what costs you are likely to pay if you win the appeal, and if you lose the appeal. ​