The Law Handbook 2024

Chapter 2.3: Representing yourself in court 81 Keep checking that you are staying focused on the facts that are disputed. Do not prepare lengthy points about facts that are undisputed or are not relevant to deciding the key issues in the case. Ensure that your notes are well organised before the hearing and that your arguments are clearly written so you can easily move from point to point. Do not be afraid to rely on your notes during the hearing. Be prepared to answer any questions that the magistrate asks you. If your points or arguments are based on principles stated in another legal case, you need to say so. Be prepared to refer to the case by name and have a copy of the case ready to give to the clerk sitting in front of the magistrate. If it is a lengthy case, you will need to tell the magistrate where the principle is on which you are relying (i.e. the page number and paragraph number). Preparing witnesses A person who can provide information about a disputed fact (also called a ‘fact in issue’) may be called as a witness. Be careful when deciding to call a witness. Your witness can be asked questions, or ‘cross-examined’, by the other side and asked questions by the magistrate, and their answers might not be helpful to you. Generally, there is only one way to ‘give evidence’ to a court or tribunal. You stand in the witness box, take an oath or affirmation to tell the truth, and then tell the court your information from your knowledge and belief. The other party may then ask you questions about what you have told the court. With an oath, you swear to tell the truth on a religious book of your choice (e.g. the Koran or the New Testament). An affirmation means making a promise to tell the truth without a religious book. You can do either in court. In most cases, written statements made by witnesses who do not attend court are not acceptable. This is because each party must have an opportunity in court to question the other party’s witnesses. It is your responsibility to organise your witnesses to come to the court or tribunal. This must be arranged well in advance of the hearing date. Sometimes it is necessary to summons them formally (e.g. to satisfy their employer that they are required to come, or because you think they might not turn up). You can ask for help with summonses or subpoenas to witnesses from the clerks and registrars of the court or tribunal. Check the cost involved in having witnesses come to court. Initially at least, you must pay the cost of bringing your witnesses to the hearing. If your witness is an expert (e.g. a doctor), or is losing income because of the time spent attending your hearing, you will probably have to pay a fee or reimburse your witness. You will need to negotiate this with your witness before the hearing day. Contact the tribunal in advance to find out what the rules are in relation to witness costs. You are allowed to speak to a witness who is being called by the other party if you need further information about their evidence to help you prepare your case. However, you must be extremely careful in doing this and always seek legal advice about how to proceed before speaking to a witness for the opposing side. Speaking to a witness out of court may not benefit your case and you are at risk of saying something that could get you into trouble. Trying to influence, intimidate or cause a witness in a court case to change their evidence is a criminal offence. Is negotiation possible? Is there any possibility that you can negotiate with the opposing party to settle the issue or narrow the issues in dispute before the court hearing? Most forums – including the Magistrates’ Court, the Federal Circuit and Family Court of Australia and VCAT – provide time for negotiations to take place between the parties before they attend a formal hearing and strongly encourage this. In many jurisdictions, negotiation is required. Settling the matter before the court hearing saves time, effort and money. However, be aware that in situations involving allegations of family violence, negotiation that involves any contact between the parties is unlikely to be appropriate and may not be allowed by law. A lawyer may be willing to conduct negotiations on your behalf, even if they cannot represent you at a hearing. Always ask your lawyer or legal service about the extent of help available to you. If you are representing yourself in negotiations with another party in a legal dispute, always save copies of all correspondence and take detailed notes of any conversations (e.g. note the date, time, names of those involved and what was said). Even keep notes of unsuccessful attempts to contact the other party to the dispute as this may be helpful at a later stage to demonstrate that you were