Supreme CourtNew South Wales

REPRESENTING YOURSELF IN CIVIL PROCEEDINGS IN THE SUPREME COURT OF NEW SOUTH WALES

1. INTRODUCTION

Everyone has the right to have their legal dispute resolved by a court or tribunal. Because the law is complicated, it is generally better for people who are involved in a court case to have a lawyer (a solicitor or barrister). But not everyone does.

This information:

Is for people who have a civil case in the Supreme Court of New South Wales and are not represented by a lawyer. Such people are called “self-represented litigants”.

Explains the Court’s most important rules and procedures which must be followed by everyone, whether or not they have a lawyer.

Refers to relevant Rules of Court and other helpful resources.

Does not give legal advice or replace the Rules.

Does not deal with criminal matters.

Is current as at March 2015.

COURT RULES

The Court’s Rules that you must follow when filing documents, preparing your evidence, appearing in Court and taking any other step in a case in the Supreme Court are found in the Uniform Civil Procedure Rules (UCPR) which can be found here or by searching for “Uniform Civil Procedure Rules NSW” on www.austlii.edu.au/.

COURT FORMS

You must use approved Court Forms when filing any documents with the Court’s Registry. These forms can be found at http://www.ucprforms.justice.nsw.gov.au/ or by clicking here. You can download the forms to your computer, save them and then fill them in electronically. However, you must physically sign documents with a pen.

PRACTICE NOTES

The Supreme Court Practice Notes give you useful information about particular aspects of procedure that might be relevant to your case. These can be accessed on the Supreme Court website under the “Practice and Procedure” tab or by clicking here.

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PRACTICAL INFORMATION

Practical information about the Supreme Court is provided in Section 23 below.

TERMINOLOGY

Section 24 is a dictionary of some of the technical terms used in this document.

FEEDBACK

The Court welcomes feedback about its services, including this document. Please send any comments or suggestions in writing to:

The Principal RegistrarSupreme Court of NSWGPO Box 3

SYDNEY NSW 2000

2. WHERE TO GET LEGAL ASSISTANCE

Court procedure can be complex. Although it is not necessary for you to be represented by a lawyer, if you are commencing or otherwise involved in a case in the Supreme Court it is recommended that you obtain legal assistance.

If you are unsure where to obtain legal assistance or are unable to pay, click here for information about the different types of legal advice that may be available. For information about how to try to resolve your dispute even before you start a court case, click here.

You can, at any time, change your mind and appoint a lawyer to represent you. If you do, you or your lawyer must file a notice of that appointment with the Court and give a copy to each other party which has been stamped by the Registry.

3. IS THE SUPREME COURT THE RIGHT PLACE FOR YOU?

Before taking any steps, it is first necessary to identify where you should start your case. There are a number of courts and tribunals in this State, including the Local Court, the District Court, the Industrial Court, the Land and Environment Court, the NSW Civil and Administrative Tribunal and other State tribunals. There are also Commonwealth courts and tribunals. Each of them has its own website.

Examples of cases that can be brought in the Supreme Court include:

Claims for money or damages in excess of $750,000.

Claims in relation to wills or estates.

Cases where you require an order that someone stop doing or do something where you say you have a legal right to such an order.

Disputes about the ownership, management or financial position of companies.

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Matters about the possession of land.

Information about other courts and tribunals can be found on the Law Assist website at http://www.lawassist.lawaccess.nsw.gov.au/lawassist/lawassist_index.html or by clicking here.

4. ARE YOU OUT OF TIME?

Before you start your case, you should check that you are not out of time. Civil proceedings must be started within a fixed period called a limitation period. After the limitation period has expired, the claim usually cannot be brought.

5. YOUR DUTIES

ASSISTING A JUST, QUICK AND CHEAP RESOLUTION

Section 56 of the Civil Procedure Act 2005 (NSW) requires parties (including self-represented litigants) to assist the Court to achieve the just, quick and cheap resolution of the real issues in the proceedings. It is also desirable, and will help you meet this duty, if you make every reasonable attempt to resolve the dispute with the other party before bringing the case to court.

BE POLITE

You should be polite to everyone that you encounter in the process of bringing a case to court and during the hearing itself. This includes court staff, your opponent and their lawyers and people that you subpoena to ask for documents or to give evidence to support your case.

LANGUAGE

If you require an interpreter, it is your responsibility to request an interpreter and then to arrange for one to attend and translate for you. It is your duty to ensure that the interpreter is present on all occasions you are appearing in court.

The main provider of interpreting services for the court system is the Community Relations Commission for a Multicultural NSW. They can be contacted by ringing 1300 651 500 , visiting in person at Level 8, 175 Castlereagh St Sydney or by clicking here. You should try and secure an interpreter who has NAATI (National Accreditation Authority for Translators and Interpreters) accreditation where possible.

You should notify your opponent of your intention to use an interpreter. Your opponent can object to your use of an interpreter. Ultimately, the decision is one for the Court to make.

NO CONTACT WITH THE JUDGE

You should never attempt to contact a Judge directly. Contact, if it is absolutely necessary, should be with the Judge’s Associate who can be found here. Before you make any contact with a Judge’s Associate, you must ensure that all other parties to the proceedings agree with the communication. They must then be copied into any email you send to the Judge’s Associate. Sending a document to a Judge’s Associate

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is not the same as filing it in the Registry. Please do not ring the Judge’s Associate to ask for an adjournment. See section 18 below in relation to adjournments.

6. THE REGISTRY

WHAT IS THE REGISTRY?

The Registry is the place where you file your court documents. The Registry staff will check your documents to ensure they are completed correctly . You can also obtain basic procedural information about the Court from the Registry. Please remember to treat all Registry staff with respect and courtesy.

Registry staff are not lawyers and cannot provide legal advice about your matter or tell you what to say in court. You cannot rely in court on any information given to you by the Registry staff. Registry staff cannot print out Court Forms for you or assist you in completing those forms.

WHERE IS THE REGISTRY?

The Registry is located on Level 5 of the Supreme Court Building at 184 Phillip Street, Sydney NSW 2000. The Registry is open from 9:00 am to 5:00 pm Monday to Friday but if you need to see the Duty Registrar (see below), you must arrive before 4:30 pm.

FILING DOCUMENTS

You may file a document by:

delivering it in person to the Registry, or

by sending it by post to the Court, or

by efiling the document using the Online Registry.

You cannot file documents by emailing them to the Registry.

You should comply with the following when filing a document:

If you are filing in person, bring the original document to be filed and a copy of the document. The registry will stamp and file the original document, and stamp the copy which will be returned to you. You will be responsible for making as many additional photocopies of the stamped copy that was returned to you as are required so that copies can be served on all the other parties, as well as ensuring that you keep at least one copy for yourself.

If you are filing by post send the original document and one copy of it. The Registry will file the original document and return the stamped copy to you by post. When you receive the stamped copy from the Registry you will need to make as many photocopies as are required to serve all the other parties as well as ensuring that you keep at least one copy for yourself.

Your documents should be in the approved form referred to in Section 1 of this document.

The Registry can refuse to file certain documents if they do not comply with the approved form. They may send you away to amend the documents if this is the case. This may cause your documents to

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be filed late which could have consequences in Court. To avoid this, make sure you use the approved Court Forms and follow the Rules about how to fill out those forms.

Not all documents can be efiled using the Online Registry. For further information about filing documents on the Online Registry and what documents can and cannot be efiled please see https://onlineregistry.lawlink.nsw.gov.au/content/.

If you do file documents using the Online Registry you will still be responsible for arranging service of the documents. See Section 9 below for further information about service.

Documents need to be filed by their due date. If you are unsure what this date is, check any orders made by the Registrar or Judge.

DUTY REGISTRAR

The Duty Registrar is located in the Registry and is available from 9:30 am to 4:30 pm in person or, in urgent cases, by telephone. Things which the Duty Registrar can do for you include:

Give permission to file documents that do not comply with Court Rules.

Give permission for you to file a subpoena.

Change the minimum amount of time you have under the Rules to serve a subpoena or notice of motion.

Grant some urgent applications if they are accompanied by a notice of motion and an affidavit showing why the application should be approved, for example, applications for a stay of a writ of possession of property.

Refer urgent matters to the Duty Judge.

Determine instalment applications to allow you to pay off a judgment debt if you cannot pay the whole amount at once.

7. COURT FEES

FILING FEES

When you file some documents with the Registry, you will be required to pay a filing fee. Documents that require a fee to be paid include any documents commencing proceedings, as well as notices of motion and subpoenas. These fees can be quite substantial. Current fees are published on the Court’s website here. If you cannot afford to pay the fees, you can apply for a waiver or postponement of payment in certain circumstances. You will need to complete an application form from the Supreme Court website available here and supply supporting documentation. If you are a Pensioner or in receipt of Centrelink benefits you will need to provide a copy of your Centrelink card. More information can be obtained from the Registry.

Importantly, even if your fee is postponed until after your case has been decided, you may still be required to pay part of the filing fees first. If any fees are postponed, it is only until the end of the case, at which time they will become payable.

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HEARING COSTS

When a hearing date is set, you will be charged a hearing allocation fee. Current fees are set out on the Supreme Court website available here. If your matter settles before the allocated hearing date, you will still be charged the hearing allocation fee. If you are unable to pay the fee immediately you may make an application to have the fee postponed until the case is finished. Even if your filing fees were previously postponed you will still need to make a new application to postpone the hearing allocation fee.

8. STARTING YOUR CASE

You start your case by filing a summons, statement of claim or, for some cases about companies, an originating process. The Rules deal with the information you must include about your claim. It is important to use the correct document. If you use the incorrect document you will have to amend it and that could mean you have to pay additional filing fees and any costs your opponent has wasted because of your mistake.

9. SERVICE

Service is the formal process of giving or sending a document to another party in a case. Most of the relevant rules regarding service are in UCPR Part 10.

If you commence proceedings, you will be required to serve a copy of the statement of claim, summons or originating process on all the defendants. Summonses must be served at least 5 days before the matter is listed. There are specific rules in the UCPR as to how to serve individuals as well as companies and government organisations.

Any other documents that you file will also need to be served. These documents can be served by sending them to the address for service nominated by the other party. If they have nominated an email address they can be emailed.

Filing documents does not mean that they will become evidence in your case. The evidence will be received at the hearing before the Registrar or Judge.

You must also provide an address at which documents can be served on you, as well as other contact details including your email address, so that other parties and the Court can communicate with you.

10. DEFENDING A CLAIM

If you are served with a statement of claim, the Rules require you to file a defence. The Rules deal with the information that you have to provide about your defence. Time limits apply to when a defence must be filed. The proper form is available on the Supreme Court website here. It is important that you provide your contact details on this document, including your phone number and email address. Please keep this information up to date so that the Court and other parties can contact you.

If you need more details about the claim being made against you, you can ask the plaintiff for more information. You may also be asked by the plaintiff to provide more details about your defence.

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11. ENTERING YOUR APPEARANCE

If a party has started a case against you, you must let them and the Court know if you wish to defend the claim. You can do this by filing a notice of appearance or by filing a defence. If you do not enter an appearance or do not attend at Court on the day your case is scheduled, the Court may make a binding decision, including a costs order, against you in your absence.

12. SETTLING YOUR CASE

The Court encourages all parties to try to settle their dispute themselves.

At any time a party can file a notice of motion (see Section 14) asking the Court to order that there be mediation between the parties.

The Court can order that a Registrar act as mediator at no cost to the parties. Parties can also hire a private mediator. Cases relating to claims for provision from an estate will not be given a final hearing date unless there has been a mediation.

For more information about mediation and mediators click here.

13. DIRECTIONS HEARINGS

Before your matter is listed for hearing, it will usually be listed for a directions hearing. A directions hearing occurs before a Registrar or Judge, who will make orders called directions. These are designed to ensure that the case is ready to be heard on the final hearing date. Directions hearings are a very important part of the Court’s procedures and it is important you attend. If you do not attend, orders can be made in your absence with which you will have to comply.

If you do not live in Sydney you may apply to attend a directions hearing by way of a telephone conference. You should make your application by email to supremecourt.listings@courts.nsw.gov.au. These applications are referred to the Judge or Registrar that will conduct the relevant directions hearing list, and you will be advised by the Registry if a telephone conference will be possible. You should make your application for a telephone conference well before the day of the directions hearing to ensure that it can be properly considered and so that you can be advised of the outcome.

14. NOTICES OF MOTION

A notice of motion is a written application to the Court after a case has started asking the Court to make an order about something. A notice of motion can be used for a number of reasons, including seeking directions or clarification on matters in dispute or asking for the adjournment of a hearing. The notice also tells the other party where and when the Court will hear the motion.

Most of the Rules concerning the procedure for and contents of motions are in UCPR Part 18. Form 20 must be used for a notice of motion. It can be found here. In most cases, a notice of motion must be filed together with an affidavit stating the facts on which you rely and, if relevant, specifying the kinds of documents in respect of which the order is sought.

If you are attending the hearing of a motion in Court, make particular note of the time the case is listed to commence. Most motions are listed between 9:00 am and 10:00 am. If you do not attend, the motion may be dealt with, including dismissed, in your absence.

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15. SUBPOENAS

A subpoena is a court order which requires a person or company to bring certain documents to Court or to appear at Court to give evidence. Most of the relevant Rules are in UCPR Part 33. A subpoena document must be created using the relevant approved form. Currently, these are Forms 25, 26A and 27A which can be found here.

Self-represented litigants must first obtain the Court’s permission (also called “leave”) to file subpoenas. You may seek this leave from the Duty Registrar by providing a copy of your subpoena document and an affidavit in support explaining why you require the documents (or person to attend Court) and how the evidence will support your case.

If leave is granted, you must file the subpoena and then serve it on the person or organisation required to produce documents or give evidence and on the other parties. You must serve a subpoena on a person or organisation within NSW at least five business days before they are expected to produce documents to Court or appear at Court. If they are outside NSW but within Australia you must serve the subpoena at least 14 days before the day they are required to produce documents or appear at Court.

If you need to issue and serve a subpoena in less than the 5 (or 14 day period) you can apply to the Duty Registrar to shorten the time for service but you will need to explain why the subpoena was not issued earlier.

16. DISCOVERY

Discovery is the process by which you can gain access to some documents held by the other party which are relevant to the case. The Rules specify when you can get discovery and the classes of documents that you can discover. Most of the relevant Rules are in UCPR Part 21. There are some documents to which in most situations you cannot have access, for example, communications between parties and their lawyers.

17. AFFIDAVITS

An affidavit is a statement prepared by a person which is used to provide the Court with written evidence. The statement must be sworn or affirmed to be true in front of a solicitor, barrister or justice of the peace. Most of the relevant Rules are in UCPR Part 35.

The person making an affidavit is called the “deponent”. An affidavit can be made by: a plaintiff or applicant; a defendant or respondent; a witness; or an expert who has knowledge relevant to a case.

The Law Assist website contains a guide to affidavits, including an affidavit checklist which can help you to write an affidavit properly. .

18. ADJOURNMENTS

Applications for an adjournment are not to be made by email or phone without the consent of all other parties. Unless there is a very good reason for a last minute application, any application for an adjournment should be made well before the day of the hearing.

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If there is no consent, the application must be made by notice of motion supported by an affidavit explaining why an adjournment is needed, to which is annexed supportive evidence, such as medical certificates.

19. THE HEARING

ONCE THE MATTER IS LISTED FOR HEARING

Your case will be assigned to a Judge for final hearing. The matter may also be referred to a Judge to hear a notice of motion. The Judge is required to remain impartial and to determine the proceedings based on the evidence and the relevant law.

As explained in Section 5 above, you are not permitted to contact the Judge directly but may, if certain steps are followed, contact the Judge’s Associate. You must not seek legal advice from the Judge or the Judge’s Associate about your case.

If you are required to file documents (such as statements of claim, defences, affidavits, notices of motion) they are to be filed in the Registry. Copies are not to be sent to the Judge’s Associate (unless requested) and sending such documents does not mean that they have been filed as the Rules require.

APPEARING IN COURT

The Appearing at the Supreme Court page provides information to people who are coming to the Supreme Court. If you are representing yourself in Court take particular note of the following points:

Check the Court Lists to confirm the time and location of your hearing. If you are not at the Court on time your case may be dismissed or a default judgment entered in your absence.

Be prepared. Be clear about what you want to say and speak slowly and clearly. Wait for your turn to speak and do not interrupt the Judge or other party.

You must always conduct yourself courteously in Court. Bow to the Registrar or Judge as you enter and leave the court room, turn off mobile phones and do not eat or drink in court.

Address the Judge as “Your Honour” or the Registrar as “Registrar”. Stand to speak and sit while the other party speaks. Do not interrupt or talk over the Judge, Registrar or other parties.

Bring at least three copies of all relevant documents to court: one for you, one for the Judge or Registrar and one for every other party.

Bring your own paper and stationery.

Pleadings, such as statements of claim, summonses and defences are a part of the Court’s record of the proceedings.

Other documents on which you wish to rely to support your case, including affidavits, must be handed up as evidence at the hearing. This is called “tendering the evidence”. You may not be allowed to use such documents unless you have given them to your opponent well before the hearing in accordance with orders made at a directions hearing.

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You will have an opportunity to make submissions about your case, the evidence received and the other party’s case at the hearing

Click here for a diagram and explanation of who’s who in Court.

20. JUDGMENT

A judgment is the Court’s decision on a notice of motion or about the final result of the case. Judgment may be given immediately at the hearing or it can be given later. This is called “reserving judgment”.

If judgment is reserved, you will later be notified of the date, time and place that the judgment will be given.

If you do not appear, a copy of the judgment will be sent to you and it will be published on the Court’s website, where it will, in almost all cases, be publicly available. .

21. COSTS

Just because you choose not to pay a lawyer to represent you does not mean that you will not incur costs by bringing a matter to Court. This is one reason why, if you can, it is much better to settle a dispute out of Court than to engage in litigation.

COURT ORDERED COSTS

If you are unsuccessful in your case, the Court may order you to pay the other party’s costs. If they are legally represented, it may mean that you have to pay for their solicitors, barristers and Court fees. If you are successful however, you may be awarded costs which may enable you to recover some of the fees that you have paid or owe, for example, your hearing fee, from the other party. Even if you are successful, it is unlikely that you will recover all of your costs involved in bringing the case. Your costs will not include, for example, income you have lost because you have taken time off work to come to Court.

22. APPEALS AND REVIEWS

If you are dissatisfied with orders made by a Registrar you can ask for a Judge to review those orders by filing a notice of motion. See UCPR Part 49 for further information about the process for reviewing a Registrar’s decision. If you are dissatisfied with the decision of a Judge you may be able to appeal that decision to the Court of Appeal. There is not however an automatic right to appeal every decision a Judge makes. Depending on the type of decision, sometimes you will need the Court of Appeal’s permission (or leave) to appeal. For example, if the decision is not a final decision in the case you will normally require leave to appeal. For information about when leave to appeal a decision may be required see the Supreme Court Act Part 7. This can be found here http://www.legislation.nsw.gov.au/maintop/view/inforce/act+52+1970+cd+0+N. More information about how to appeal or seek leave to appeal to the Court of Appeal can be found in UCPR Part 51. .

23. PRACTICAL INFORMATION

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WHERE?

The address and other contact information for the Court is:

Street Address:

Law Courts Building184 Phillip Street

SYDNEY

Postal Address:

GPO Box 3 Sydney NSW 2001

Australia

DX:

DX 829 Sydney

PHONE

For general enquiries, phone 1300 679 272.

EMAIL

For general enquiries, email supremecourt.enquiries@courts.nsw.gov.au.

WHEN?

The Court Registry is open from 9:00 am to 5:00 pm Monday to Friday.

Court sitting hours are usually from 10:00 am to 4:00 pm Monday to Friday, although depending on the type of case, starting times can vary between 9:00 am to 10:15 am.

When does your case start and where is it being heard? You can find out the exact location and starting time for your case by looking it up on the Court List which appears on the Court’s website. The List for any day is available on the Court’s website here from 3:30 pm on the previous day.

SPECIAL REQUIREMENTS

All Court buildings have disabled access and facilities. If you have any concerns, please contact the Court on 1300 679 272 or email supremecourt.enquiries@courts.nsw.gov.au well ahead of time.

GETTING HERE

The Court is accessible by buses stopping in Elizabeth Street or Macquarie Street. It is 5 minute walk from either St James or Martin Place railway stations.

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THE SUPREME COURT BUILDING

The Court comprises three separate locations around Queen’s Square in which civil cases are heard:

Levels 3 (ground level) to 14 of the Law Courts Building, Queen’s Square.

The King Street Building. Depending on which Court you are in, this building is entered from King Street, Elizabeth Street or St James Road.

Hospital Road Court Complex. Access to this complex is from Macquarie Street by a path between the Mint and the Barracks buildings.

Supreme Court of New South Wales Law Courts Building Queens Square

Hospital Road Court Complex (through the Mint to Hospital Road)

King Street Court Complex (depending on Court, enter from King or Elizabeth Streets, or St James Road

SECURITY AND PHOTOGRAPHY

The Court’s buildings are secure and you will need to pass through a metal detector and any other security check that Court security staff consider appropriate. Any weapons (including firearms or knives), flammable liquids, explosive materials, or disabling chemicals are strictly prohibited. Everyday items including scissors, deodorant and cameras will also be confiscated by security. Photography is prohibited inside the Court’s buildings.

EATING

There is no café in the Court. However, there are numerous cafés in the streets around Queen’s Square which are open from early in the morning.

SUPREME COURT WEBSITE

The web address of the Supreme Court is http://www.supremeCourt.justice.nsw.gov.au/ and can be accessed here.

24. TERMINOLOGY

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For a full legal dictionary, see the Law Assist website. Some useful terms which have been used above include:

Adjournment Postponing a Court hearing or other Court appearance to another date.

Affidavit A written statement prepared by a person. The statement must be sworn or affirmed to be true in front of a solicitor, barrister or justice of the peace. See UCPR Part 35.

Defence In a civil case, the reasons why the defendant disputes the claim against them. A 'defence' form is a document filed at Court by the defendant to notify the Court and the plaintiff that they dispute the claim, and it may also include the reasons why they do not owe any money claimed. See UCPR Part 14.

Defendant A person who has proceedings commenced against them in a Court.

Filing Taking or sending documents to the Court Registry. The Registry staff will stamp the document and put it on the Court file and return stamped copies to be served on the other parties. See UCPR Part 4.

Judge’s Associate The Judge’s administrative assistant.

Leave To seek leave of the Court is to ask for the Court’s permission.

Mediation Confidential meetings between all the parties to a case where an independent third person (a “mediator”) tries to help them come to an agreement about their dispute. See UCPR Part 20.

Notice of Motion A written application to the Court after a case has started asking the Court to make an order(s) about something. The notice also tells the other party where and when the Court will hear the application. See UCPR Part 18.

Originating Process A plaintiff starts a certain type of civil case involving companies by filing an Originating Process under the Supreme Court (Corporations) Rules. More usually, a plaintiff starts a civil case by filing a statement of claim or summons. See UCPR Part 6.

Party to Proceedings Includes the plaintiff or defendant (or cross-defendant or cross-applicant).

Personal Service Giving documents to a party personally, that is, face to face. See UCPR Part 10.

Plaintiff A person who starts a civil case against another person in a court.

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Registry A place at the Court where people can file documents and make enquiries.

Sealed Copy A document or form that has been filed with the Court and has a court stamp on it. See UCPR Part 4.

Service The formal process of giving or sending a document to another party in a case. See UCPR Part 10.

Statement of Claim A plaintiff files a statement of claim to start a civil case. It tells the Court and the defendant what orders the plaintiff is claiming and sets out the facts the plaintiff says entitle the plaintiff to those orders. Some proceedings must be started by statement of claim. Others are started by summons. See UCPR Part 6. Certain proceedings about companies are started by originating process under the Supreme Court (Corporations) Rules.

Subpoena A court order telling a person or company to bring certain documents to Court or to appear at Court to give evidence. See UCPR Part 33.

Summons A plaintiff files a summons to start a civil case. It tells the Court and the defendant what orders the plaintiff is claiming. Some proceedings must be started by statement of claim. Others are started by summons. See UCPR Part 6. Certain proceedings about companies are started by originating process under the Supreme Court (Corporations) Rules.

UCPR Uniform Civil Procedure Rules 2005 (NSW)

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