It is important to note that at each hearing, orders will be made. Court orders can be made:
- by consent of the parties, or
- by decision of a judge or judicial registrar.
If you and the other party or parties reach an agreement on the day, or in the lead up to the hearing, you can present the signed agreement to the judge or judicial registrar and ask that the orders be made by consent. Consent orders can be interim (temporary) or final. If you cannot reach an agreement, the judge will make any orders necessary for your case to proceed to the next court event.
When an order is made, each person bound by the order must comply with it.
The Court will notify you on how your matter will be heard, for example in person or a remote hearing.
Hearing types
First court date (directions hearing)
When you initiate your case in the Court, the documents you file will be stamped with a date for the first ‘directions hearing’. This is usually the first time that people involved in a case appear in court.
Your directions hearing may only take a short while – 15 minutes or less. The purpose of the hearing is to work out the timing of your matter, not to hear the substantial facts of the case. You may be asked how long you think the final hearing will take. This allows the Court to schedule your final hearing.
In addition to possibly setting the date for a final hearing, the Court may, on this date:
- give directions (instructions on the next step/s that are required in a case), including directions to attend mediation or other dispute resolution
- approve proposed consent orders (either provided to the Court before the hearing or at the hearing)
- if time permits, conduct an interim hearing (a short hearing about an urgent or defined issue) and make interim orders
- make final orders for certain types of applications, and
- give directions of steps to be taken in preparation for the final hearing, including setting deadlines for filing and serving documents.
The first court date also provides the parties with an opportunity to define the issues that are in dispute and, if possible, reach an agreement.
It is likely that your case will be just one of many listed at the same time. This is sometimes known as a ‘duty list’. The way in which judges or judicial registrars conduct a duty list will vary. Some judges and judicial registrars may call through the list alphabetically or in numerical order. Others may ask for matters to be ‘stood down’ and deal with consent matters or applications for adjournment first. In any event, the judge or judicial registrar will call through all the cases in the list. If you are unsure, ask the associate before the duty list starts.
If your case is ‘stood down’, it means that it is put on hold for a short time and the Court will deal with your case later that day. This gives you an opportunity to negotiate, define the issues in dispute and, possibly reach an agreement with the other party. This is different from an adjournment. If your case is adjourned, it will be postponed to another day.
In some matters, such as Fair Work small claims and consumer credit small claims, the first court date is likely to be the only court date, and the matter will be heard (and probably decided) on this date.
Further directions hearing
In addition to the hearing on the first court date, you will sometimes have to attend court for a further directions hearing, especially if a considerable time has passed since you were first in court and things have evolved in your case. The Court will make the same kinds of orders as it made on the first court date, such as directions on the next steps to be taken, including a possible direction to attend mediation.
Interlocutory hearing
Interlocutory hearings deal with specific issues that need to be determined before the final hearing. For example, an interlocutory hearing may be scheduled if a party applies for:
- interim relief (such as an injunction – an urgent order to stop someone doing something)
- procedural matters (such as ordering a party to give the other party documents), and
- security for costs (if the Court thinks that you may not be able to pay the other party’s costs if you lose the case, the Court may order that you deposit money with the Court or provide security, such as a bank guarantee).
Final hearing
At the final hearing or trial, each party presents their case. In most matters, witnesses will be called to give their evidence and may be cross-examined. If a witness has given evidence by affidavit, they will not have to give the evidence again, but they may be cross-examined on their evidence.
The judge or judicial registrar usually asks the applicant to outline their case first. Following this and any cross-examination of witnesses by the respondent, the respondent outlines their case, and their witnesses may be cross-examined by the applicant. The parties then make any final comments or legal arguments in support of their case.
The judge may ask questions or interrupt you. Listen carefully and answer as clearly as you can. If the judge says something is not relevant, move on to your next point.
You cannot interrupt the other party with an objection unless it is about a matter of law. If you do have a legal objection, stand and tell the judge of your objection.
The length of the final hearing will depend on the facts of the case.
After hearing the case, the judge may make orders and give reasons for their decision. Ask for the orders to be repeated if you missed any. If you do not understand any of the orders, ask the judge to explain them once they have finished speaking. Once finalised, your orders will be signed and sealed electronically, and you can download them from the Commonwealth Courts Portal. For a step-by-step guide to accessing orders, see How do I access orders?
Sometimes, a judge may reserve or hold over their decision for another time or date. In such a case, the Court will let you know when the decision has been made, and you must attend court when the decision is handed down. The decision will include the orders made and the reasons for the decision.
