The Law Handbook 2024

80 Section 2: Getting help the facts of your case. Cases that end up being dealt with by a court or tribunal usually involve a dispute about facts. Disputed facts In a case, the facts are ‘disputed’ when the two opposing parties do not agree about what happened. In such cases, the court or tribunal will decide which version of the facts it accepts based on the evidence presented to the court or tribunal. For example, you are applying to VCAT for an order to make your landlord repair damage to your home. If your landlord disagrees and thinks there is no need for repairs, then the facts are in dispute. If you and your landlord can’t reach an agreement, you may need to provide evidence that supports your version of the facts at a hearing. Undisputed facts In a case, the facts are ‘undisputed’ when the two opposing parties agree about what happened. For example, the police claim that you were driving while your licence was suspended and you accept that this is true. In such cases, you do not need to provide evidence to support your version of the facts. Also, the court or tribunal will not decide which version of the facts is correct. Instead, you need to focus on making arguments to the court about which penalty would be the fairest and most appropriate for you, given you are accepting the police’s version of events and accepting responsibility for the offence. Preparing the facts It is important to: • Write down the facts as you know them. • Try writing the facts in chronological order (that is, in the order of when they happened) – this could be a list or timeline of important events or actions that show what happened from your perspective. • Work out which facts are disputed and which facts are agreed on. This will help you work out which facts you need to prove by presenting evidence. For the facts that are disputed, add references to your chronological list that link each disputed fact to specific evidence to prove that fact. • There are two main ways to present evidence to a court or tribunal to prove a fact; either: – give the evidence yourself in your own words about what you have directly done, said, seen or heard; or – call someone else to give the evidence about something they have directly done, said, seen or heard; that is, you call a witness. It might also be helpful to bring to court any material about your personal circumstances, for example character references or letters from counsellors, psychologists or programs you have engaged with. This is because if your matter resolves, this positive material might go in your favour. Exhibits If you have an ‘exhibit’ (i.e. a document, video, recording or photo that you believe is evidence of a particular fact), that exhibit usually has to be provided at court through a witness or by the person who created the exhibit (e.g. by the person who took the photos of damaged property). Rules of evidence The Evidence Act 2008 (Vic) sets out the strict rules about what type of evidence can be used in court, and what facts evidence can be used to prove. For example, in general, people are not allowed to say their personal opinion about something when they give evidence; they can only say what they directly saw or heard. If you are appearing in court for a hearing that will involve evidence and arguments about disputed facts, you can familiarise yourself with the basic rules of evidence. A clear guide to presenting evidence is court is included in Max Perry’s book, Hampel on Advocacy: A Practical Guide to Basics (2010, Leo Cussen Institute, Melbourne). This book is written for lawyers about how to represent their clients, but it contains good information about how to speak in court and how to present arguments and evidence. Preparing to present your arguments Once you have put together all the facts, write down the final argument that you are aiming to prove. Also write down a list of points to support your final argument. Make sure that each point can be backed up by evidence, for example statements in the brief.