Getting ready for court
Information about what to do when going to court or a tribunal for a legal dispute.
Going to court can be a confusing experience, particularly if it your first time.
Whether you have started a court case against someone or someone has started a court case against you, this topic can help you get ready for court.
If you want to start a case, defend a case or appeal a decision, you must do certain things within a certain time. These are called time limits. Each area of law has specific time limits for different things.
The legal system has time limits for making claims, defending claims and appealing decisions. It is important that you take steps to find out the time limit that applies to your case.
Sometimes it is possible to ask the court or tribunal for an extension of time to make or defend a claim or file an appeal. You will need to explain why you need an extension of time, and give a good reason for not doing anything within the time limit.
If you can't find the time limit, or if the time limit has or is about to run out and you want an extension of time, you should get legal advice quickly.
Each topic in My Problem is about has information about specific time limits relevant to that area of law.
The Australian legal system is made up of different courts and tribunals, both at a state and federal level. Which court or tribunal you go to will depend on what your case is about. It is important that you start your case in the correct court or tribunal.
If you are unsure where to file your claim, you should get legal advice.
There are three main courts in NSW. The Local Court, District Court and Supreme Court.
Local Court of NSW
The Local Court of NSW is the lowest court in the court hierarchy. There are a number of Local Courts throughout NSW that hear:
- civil cases
- criminal law cases
- applications for Apprehended Violence Orders (AVOs)
- applications relating to driver licences
- some family law cases.
The Local Court's civil jurisdiction is made up of the Small Claims Division and the General Division. The Small Claims Division can hear cases up to $20,000. The General Division can hear cases up to $100,000, or if the parties agree up to $120,000. Any claim more than this amount will be heard in the District Court.
Cases in the Local Court are heard by Registrars, Assessors and Magistrates.
District Court of NSW
The District Court of NSW is the intermediate court in the court hierarchy. There are two District Courts, Sydney CBD and Parramatta, but the District Court also sits and has registries at a number of places outside of Sydney.
The District Court hears:
- civil claims between $100,000 and $1,250,000, or more if the parties agree
- more serious criminal matters except murder, treason and piracy
- appeals from the Local Court.
Cases in the District Court are heard by a Judge. Criminal cases are heard by a judge and a jury unless the accused requests a Judge alone trial.
Supreme Court of NSW
The Supreme Court of NSW is the highest court in NSW.The Supreme Court hears:
- the most serious criminal matters, such as murder
- civil claims more than $1,250,000
- appeals from the District Court.
The appeal courts are the Court of Appeal and Court of Criminal Appeal.
Trial work is divided between the Common Law Division and the Equity Division.
Cases in the Supreme Court are heard by a Judge. Criminal cases are heard by a Judge and a jury unless the accused requests a Judge alone trial.
For more information about NSW courts and tribunals, see the Courts and Tribunal Services website.
Federal courts in NSW hear matters relating to federal law when the incident arises in NSW or the parties live in NSW.
Federal Circuit and Family Court of Australia
The Federal Circuit and Family Court of Australia hears a range of cases, including:
- family law and child support
- administrative law
- admiralty law
- bankruptcy
- copyright
- human rights
- industrial law (employment law)
- migration
- privacy
- trade practices.
For more information, see the Federal Circuit and Family Court of Australia website.
Federal Court of Australia
The Federal Court sits in all capital cities and elsewhere in Australia from time to time.
The Federal Court hears a range of cases, including:
- employment
- human rights
- migration
- bankruptcy
- appeals from the Supreme Court of NSW in federal matters
- appeals from the Supreme Court of the ACT and the Supreme Court of Norfolk Island
- appeals from decisions of single judges of the court and from the Federal Circuit Court in non-family law matters.
For more information, see the Federal Court of Australia website.
The High Court of Australia is the highest court in Australia. It is located in Canberra. There are offices of the High Court Registry in Sydney and Melbourne, staffed by officers of the High Court. In Adelaide, Brisbane, Darwin and Perth, registry functions are performed on behalf of the High Court by officers of the Federal Court of Australia, and in Hobart they are performed by officers of the Supreme Court of Tasmania.
The High Court hears:
- a range of cases, including cases about arbitration, contract, company law, copyright, courts-martial, criminal law and procedure, tax law, insurance, personal injury, property law, family law and trade practices
- cases which involve interpretation of the Constitution, or where the Court may be invited to make a decision differently to how it did before, or where the Court considers the principle of law involved to be one of major public importance
- appeals from the Supreme Court of the states and territories
- appeals from the federal courts.
Cases may be decided by a full bench (all seven Justices), a full court (not less than two Justices) or a single Justice.
There is no automatic right to have an appeal heard by the High Court and parties who wish to appeal must persuade the Court in a preliminary hearing that there are special reasons why the appeal should be heard. Decisions of the High Court on appeals are final. There are no further appeals once a matter has been decided by the High Court, and the decision is binding on all other courts throughout Australia.
For more information, see the High Court of Australia website.
Tribunals or commissions also have the power to make decisions which are binding. Tribunals are less formal than courts and often provide a quicker and cheaper way of solving a legal dispute.
Administrative Appeals Tribunal
The Administrative Appeals Tribunal (AAT) is an independent body that reviews administrative decisions made under Commonwealth law, including decisions made:
- by Australian Government ministers, departments and agencies
- under Norfolk Island law
- in some limit circumstances, by state government and non-government bodies.
The AAT has nine divisions, including:
- Freedom of Information Division
- General Division
- Migration & Refugee Division (including the Immigration Assessment Authority)
- National Disability Insurance Scheme Division
- Security Division
- Small Business Taxation Division
- Social Services & Child Support Division
- Taxation & Commercial Division, and
- Veterans’ Appeals Division.
For more information, see the AAT website.
NSW Civil and Administrative Tribunal
The NSW Civil and Administrative Tribunal (NCAT) is an independent body that decides a range of civil cases and review administrative decisions made under NSW law. NCAT has four Divisions:
NCAT hears a range of matters, including:
- fencing matters
- consumer claims
- guardianship issues
- strata and tenancy disputes
- home building disputes.
For a full list of matters NCAT can deal with, see the NCAT website.
In Australia, the law is made up of statute law and common law. Researching the law can help you prepare your case and give you confidence in the courtroom. There are a number of resources you can use to help you research the law and find legal information.
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.
Before you go to court you should consider how courts and tribunals decide cases so you can prepare your evidence.
How courts and tribunals decide cases
During a hearing each party presents evidence to support their case. Each party will also present legal arguments. This is known as submissions where they give their view of the law that applies to the case.
A court or tribunal has to do two things to decide the outcome of a case:
- Make 'findings of fact' about the dispute based on the evidence presented during the hearing of the case. When different versions of what happened have been given in the case, the court will decide which version it prefers.
- Decide the correct law to be applied to the facts
It is important to remember that a decision must be based on the evidence presented at the hearing. As a party to a case, it is not enough for you to say that you know or believe something to be true. You need to present evidence to support your belief.
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.
Some court cases involve a lot of documents. Most court cases will run more smoothly if you are well organised.
It is important that you gather as much evidence as you need to support your side of the story. Once you have all your evidence, keep all your documents together. You will need them to prepare for a hearing, and may need them for settlement discussions or mediation.
Evidence can include:
- invoices or receipts
- diary, calendar or appointment books
- letters, emails, notes or faxes
- contracts or quotes
- photographs
- diagrams.
For more information, see Gathering evidence in this topic.
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 pay 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
Date | Event | Documents |
|---|---|---|
1 June | Handyman ad starts running in the local paper |
|
4 June | Telephone conversation with Jacqui about work around her house | Diary entry for 4 June |
6 June | Met Jacqui at her place. Agreed to do several jobs and the amount to be paid |
|
10 - 15 June | Went to Jacqui's house every day to do the work from 7am to 3pm (hour for lunch) | Diary entries from 10 - 15 June |
13 June | Talked to Jacqui about a couple of the jobs. They will need more work than what was agreed. Jacqui says to do the extra work. | Diary entry from 13 June |
20 June | Sent a bill to Jacqui for the work | Copy of the bill |
20 July | Called Jacqui on her mobile about the bill | Copy of mobile phone statement |
28 July | Called Jacqui again about the bill. She said that she would pay the bill after she gets paid | Copy of mobile phone statement Diary entry from 28 July |
Letters can go missing in the post and sometimes things can be misplaced. It is important that you keep copies of all letters and documents you send by post and fax transmission sheets for any faxes you send.
Make sure you store the originals in a safe place where you will not lose them.
When your case starts it is important to keep track of important dates in your case, such as when you:
- received a court document
- gave or sent a court document to the other party
- filed a document in court
- attended court
- had a telephone conversation with the other party or their lawyer
- had a telephone conversation with the court registry or the police
- sent a letter, fax or email to the other party or their lawyer
- received a letter, fax or email from the other party or their lawyer
- made or received any offers of settlement from the other party or their lawyer
- have to attend court.
It is also very important that you make a record of anything the court tells you to do and the date by which you have to do it.
Having a neat record of all important dates in your case can help with settlement discussions and prepare you for any questions the magistrate may ask you in the courtroom.
Lawyers going to court usually have a file with them containing all the documents about the case. The documents should be arranged in chronological order (from oldest to most recent). You may find it useful to do the same thing. Your document file can include:
- sealed (stamped) copies of all the documents you have filed in the case
- copies of any documents given or sent to you by the other party or the court
- copies of any letters, faxes, or emails from the court or the other party about the court case
- fax transmission reports that show when a fax was sent
- copies of any documents you have not filed but intend to use or refer to in court, for example, your evidence, and extra copies for the registrar or magistrate and the other party.
Tabbing important documents in your court file with post it notes will allow you to find them easily when in the courtroom.
If you move or change your address, you need to let the court and the other party know.
In civil cases, you need to file a change of address for service form at court and give a copy to the other party. In criminal cases, you can let the court or prosecutor know about a change of address by contacting the court registry or officer in charge.
If you have difficulty speaking or understanding English, or you are deaf, hard of hearing or have a speech impairment, you may be able to get an interpreter to help you before and at court.
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.
If you have a disability, there are services that may be able to help you; before you go to court, to get to court and while you are at court.
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 help you can contact your local court or Diversity Services.
For more information, see Contact us on the Department of Communities & Justice website.
Going to court for the first time can be confusing. You should consider:
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 or 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 the 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.
Legal costs usually include both lawyers' fees, and the expenses involved in running a case.
If you are representing yourself in a case, you do not have to pay for a lawyer, however, you may still have to pay some legal costs to the other party in the case. These costs are called 'party/party costs'. You may also have to pay certain legal costs to the court.
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 means 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. Sometimes 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 reserved'
This means that the decision about payment of costs for an interlocutory 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.
'Costs thrown away'
This means that a party who does not attend a hearing, or is not prepared 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.
If you are unhappy with a decision made by a Court or Tribunal you may be able to appeal the decision.
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.
| Court or tribunal | Appeal to |
|---|---|
| Local Court | District Court or Supreme Court |
| District Court | Supreme Court |
| Supreme Court | Court of Appeal |
| Administrative Appeals Tribunal | Federal Circuit and Family Court or Federal Court |
| NSW Civil and Administrative Tribunal (NCAT) | Appeals panel of NCAT, then Supreme Court |
| Fair Work Commission (the Commission) | Full Bench of the Commission, then Federal Court |
| Federal Circuit and Family Court | Federal Court, then High Court |
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.
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