When can you request a rehearing?
If a final An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. order has been made against you because you did not attend the The time and place at which a court or tribunal hears the parties argue their case and makes a decision., you may, under section 110 of the MC A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation., apply for the order to be set aside and the case reheard. This can be done at any stage after the order has been made, but the later you apply the more difficult it is to have the order set aside. You can only request a rehearing if you have a proper (1) A defendant’s response to the legal claims made against them in court by a prosecutor or plaintiff. (2) A lawful excuse for conduct: for example, causing minor injuries to someone while saving them from certain death. (3) ‘The defence’ is also a way of referring to the defendant and their legal team. to the claim, or some dispute about the actual amount of the claim.
Before you make an application for a rehearing, think about the The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs.. Unless you have applied for a rehearing promptly, and you have a good reason for not having defended at the first hearing, the court A document that sets out what a person wants to happen to their money and other property after they die. usually require you to pay the creditor’s legal costs, even if your rehearing application is granted.
Before applying for a rehearing, advice should be sought from a A legal practitioner (lawyer) who sees clients and opens files to deal with their legal matters but usually does not appear in court. See also barrister. or community legal centre (see ‘Community legal centres’ in Chapter 2.4: Legal services that can help).
Applying for a rehearing
To get a rehearing, lodge form 46B (Magistrates’ Court General Rules) with the Magistrates’ Court’s The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. (r 46.09). A fee of $157, or $185.10 with preparation by a registrar (as at 1 July 2020), must be paid. The application must state:
- why you didn’t appear on the hearing date; and/or
- why you didn’t return the In a civil case, a document that a defendant must give to a plaintiff informing them that they will defend the lawsuit against them, and the reasons why..
A common reason given is that the A person who owes a debt. didn’t receive the complaint. In such cases the court will usually grant a rehearing. However, if you received the complaint and failed to take any action, it may be harder to obtain a rehearing.
The Magistrates’ Court will require the applicant for a rehearing to lodge a supporting A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent. setting out the facts to be relied upon in the application. The affidavit should be served on the The person or organisation to whom a debtor owes a debt. at least 14 days before the rehearing. The creditor must then indicate whether you are required to attend court to be cross-examined on the affidavit. You should assume that you will be required to give Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. in support of the application.
If the creditor has commenced enforcement action against you on the order, an application for rehearing will stop the enforcement action. Therefore, if the creditor has issued a A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate. to the An officer of the court who is responsible for the enforcement of court orders. (see ‘Warrant to seize property’, below), it is important to give the sheriff a copy of the application for rehearing to stop the sheriff from executing the warrant. Any enforcement of the original court order is stopped until the application has been dealt with.
If the application is granted
If the application for rehearing is granted, the original court order against the debtor is no longer in effect and the creditor’s claim must be heard again. The rehearing can go ahead immediately or it can be adjourned to a later date. A request for an adjournment to give you time to prepare your case or to get more information will almost certainly be granted. In fact, most hearings are adjourned.
If you are granted a rehearing and an adjournment, legal costs may be significant. Even if you are successful in your defence you may have to pay some or all of these costs.