How a court case actually works.
Most of what frightens people about court is not the law. It is not knowing who anyone is, what order things happen in, or what the words mean. This page is for reading before you need it.
The thing nobody tells you first
Your first appearance is probably not a trial. It is far more likely to be a short administrative listing where a judge or registrar deals with thirty matters in a morning and yours takes three minutes. Nobody will ask you to prove your case. They will ask what stage it is at and what needs to happen next.
People prepare for a courtroom drama and arrive at something closer to an appointment. Knowing that in advance removes most of the fear, and stops you trying to argue the whole thing on a day when nobody is listening for it.
Who is in the room
Nobody there is on your side unless you hired them
That includes the judge, who is not against you either. Their job is to decide, not to help you win.
Decides the case. In a lower court you may see a magistrate instead, addressed the same way.
A judicial officer who handles procedural stages, timetables and many routine applications. Most first appearances are before a registrar rather than a judge.
The judge's assistant. Manages the courtroom, calls matters, and is who the parties email about listings.
Keeps order, hands documents up, tells you where to sit. Ask them if you are lost. They are used to it.
Runs the case, prepares the documents, often appears at procedural stages. Acting for their client, not for you, and not permitted to advise you.
Specialist advocate briefed by a solicitor for hearings. If someone in a wig appears against you, the other side has spent money.
Not lawyers, and not allowed to give you legal advice. They can tell you what has been filed, what is due, what form to use and how to file it. That is more useful than people expect.
What happens in what order
Most cases never reach a trial
They settle, or they are decided on the papers, or one side gives up. The stages below are the shape of a civil case. Not every case has all of them.
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Something starts it
One side files a document with the court and serves it on the other. Filing means giving it to the court. Serving means giving it to the other side. You almost always have to do both, and they are not the same step.
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The other side responds
Within a set period, usually stated on the document. If nobody responds, the person who started it can often get judgment without a hearing at all.
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Directions
Short listings where the court sets a timetable. File your evidence by this date, tell us by that date whether you have settled. This is where most of your court appearances will happen, and each one is brief.
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Evidence goes in on paper
Mostly by affidavit, which is a written statement you swear or affirm is true, with the documents you rely on attached. Courts read the evidence before the hearing. Very little gets introduced on the day.
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Attempts to settle
Mediation or a settlement conference, sometimes ordered by the court. Most cases end here. Settling is not losing, and it is usually cheaper and more certain than the alternative.
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Hearing
The part people picture. Both sides put their case, witnesses may be cross-examined, and it is decided.
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Judgment and orders
The decision, and what each side now has to do. A judgment can be delivered on the day or reserved and given later.
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Enforcement
Winning does not mean being paid. If the other side does not comply, there are separate steps to make them, and those cost money too.
Before you decide to fight
What it costs if you lose
This is the single most important thing an unrepresented person can know, and it is the one most often discovered too late.
In most Australian courts, the general rule in civil cases is that the losing side pays a large part of the winning side's legal costs, on top of their own. If you fight a represented opponent and lose, you can end up owing their lawyers as well as your original debt.
It is a general rule, not an absolute one. Courts have a discretion, the amount recoverable is usually less than what was actually spent, and some places run differently. Many tribunals, and some divisions handling smaller claims, are no costs or limited costs jurisdictions where each side bears its own. Employment matters in the Fair Work Commission are largely run that way too.
So the question to answer early is not only whether you are right. It is what happens to you if a court decides you are not. Find out which rule applies in your court before you commit to a fight, because it changes what a sensible settlement looks like.
Courts charge to file most documents, and the fees are not small. If you receive a government benefit or would suffer financial hardship, most courts have a process to waive or reduce them. Ask the registry. It is a form, not a favour.
The words
Used constantly, explained rarely
- Adjournment
- Putting a hearing off to another date.
- Affidavit
- Written evidence, sworn or affirmed to be true. The person who makes it is the deponent.
- Appearance
- Formally telling the court you are participating in the case. Also the act of turning up.
- Costs
- Legal costs, not court fees. An order for costs means one side pays the other's.
- Directions
- Orders about how the case is to be run and by when. Not a decision about who wins.
- Discovery
- Each side giving the other the relevant documents it holds, including unhelpful ones.
- Ex parte
- Without the other side present. Rare, and courts dislike it unless there is a good reason.
- Interlocutory
- Anything decided along the way rather than finally.
- Leave
- The court's permission. You need it for some steps, including a director speaking for a company.
- Mention
- A brief listing to check on progress. Usually a few minutes.
- Order
- Something the court requires to happen. Ignoring one has consequences of its own.
- Party
- Someone actually in the case. Plaintiff or applicant brings it, defendant or respondent answers it.
- Service
- Formally delivering a document to the other side, in a way the rules accept.
- Stay
- Pausing something, such as enforcement of a judgment, while something else is sorted out.
- Submissions
- Your argument, as opposed to your evidence. Often written and filed before a hearing.
- Without prejudice
- Marks a settlement negotiation so it generally cannot be shown to the court later.
What courts expect
The allowance is for procedure, not for the law
Courts do make allowances for people without lawyers. They will explain what stage you are at, let you know what needs to happen next, and be patient with you getting a form wrong. What they cannot do is argue your case for you or apply a softer version of the law because you are unrepresented. The other side has to prove their case either way, and so do you.
Five things that cost self-represented people more than any legal mistake:
- Missing a date. Almost everything else is recoverable. This often is not.
- Ignoring an order. If you cannot comply, say so before the deadline, not after.
- Writing too much. A thirty page affidavit about how unfair it all is helps you less than three pages of dates and documents.
- Arguing everything. Pick the two points that actually decide it. Judges notice which ones you lead with.
- Losing credibility. Overstating one thing makes everything else you say worth less, and you rarely get it back.
Getting help without being able to afford a lawyer
Between doing it entirely alone and retaining someone for the whole case, there is a lot of ground people do not know exists.
- Community legal centres give free advice, and many run specialist services in tenancy, employment, credit and debt.
- Legal aid in each state has advice lines that anyone can ring, separate from full representation which is means tested.
- Duty lawyers at some courts can help on the day, though usually only in particular lists.
- A limited retainer. Many solicitors will take on one appearance, one document or one advice for a fixed fee agreed in advance. It is a much smaller commitment than running the whole case, and it is the option people most often do not think to ask for.
This page is general information about how courts work in Australia. It is not legal advice, and procedure differs between courts, tribunals and states. Where this page and your court's own rules disagree, the rules win.