This fact sheet provides basic information on what to expect and how to behave when you go to court.

Entering the court

Make sure you arrive before your scheduled hearing time. If the judge is already in the court when you enter, stop and nod respectfully to the judge from the doorway of the court before proceeding to your seat.

If you are representing yourself, you should sit at the table in the centre of the courtroom facing the judge. This table is called the bar table. If the other party in your case is represented by a lawyer, you will usually sit on the left hand side of the bar table (as you walk into the court). If both parties do not have lawyers and you are the person bringing the legal action you should sit on the right. If you are defending the legal action you should sit on the left.

Remember that there may be other matters being heard the same day as yours, and you should wait for your matter to be called before moving to the bar table. While you are waiting, you can sit in the public seating area at the back of the court room.

Court layout

There will often be a number of court officials in the courtroom. For more information about who they are and where they sit, take a virtual tour:

• Through the Queensland Department of Justice and Attorney-General’s website (for matters in the Queensland Courts); or
• Through the Federal Circuit Court’s YouTube page (for matters in the Federal Courts).

Speaking to the judge

You must stand when the judge enters the courtroom.

You must also stand when the judge is speaking to you, or when you are speaking. If you are unable to stand because of a disability, you should explain this to the court (unless, of course, your disability is self-evident). At all other times you should remain seated and quiet. You address a judge as ‘your Honour’ and you should speak to them in a courteous manner. The judge may ask you questions at any point during the hearing – you should respond to these questions accurately, and as briefly, as possible.

You should not attempt to contact the judge directly at any stage outside of court. Any discussions you wish to have with the judge must occur in the courtroom.

How to dress

Court proceedings are formal occasions. While it is not strictly necessary to wear a suit, you should dress as neatly as you possibly can. Thongs and singlets must not be worn.

You should remove your sunglasses and/or hat before entering the court.

General rules

Going to court can sometimes be a frustrating process. However, it is important to be polite and courteous to court staff and the other party at all times.

Turn off your mobile phone. Do not simply switch it to silent

Note also that food and drink are not permitted inside the courtroom. There will generally be a jug of water provided for parties at the bar table.

Tape recorders and cameras may not be used in the court. You may be asked to remove any such items from the courtroom.

Accessibility

The courts are all wheel chair accessible. A number of other provisions have also been made to make access easier for persons with disabilities. Should you have any queries you should contact the registry of the court you are going to.

If you come from a non-English speaking background, you may be allowed to have a translator in the court room with you. This should be arranged before the hearing, not on the day. A list of accredited translators is available through the National Accreditation Authority for Translators and Interpreters Ltd. You should be aware that these translators are likely to charge a fee. You should also contact the registry of the court you are going to because they might be able to help you to organise an interpreter.

Go along and observe

The best way to determine how you should behave in a court room is to go along and watch a hearing or trial prior to the commencement of your own proceedings.

Most court hearings are open to members of the public. You can find a list of the hearings happening each day on the website of the court hearing your case. When watching another trial or hearing you should sit in the public gallery located at the back of the court room. You should still follow the same rules of etiquette as outlined above.

For more detailed information about going to court, please see:

• “Representing Yourself in Court” on the Queensland Courts website.
• “Tips for your hearing” on the Federal Circuit Court’s website.
• “Going to Court” on the Department of Justice and Attorney-General website.

To successfully pursue your case in court it is necessary to have evidence to back up your claim. You can’t just think you have a case, you must be able to prove it. Evidence can take several forms such as documents, sound and video recordings and witness statements (written statements about what the witness saw or heard). Evidence can also be given through oral statements (testimony) made at court by witnesses. There are a number of rules of evidence which have been established to ensure fairness in the trial process and to ensure that the best evidence is admitted.

In Queensland, the rules of evidence are governed by the Evidence Act 1977 (Qld). You should also have regard to any procedural rules under the Uniform Civil Procedure Act 1999 (Qld).

The facts in issue

Evidence is used to prove the “facts in issue” in a court proceeding. The facts in issue are the things you will need to prove in order for your case to succeed.

This will depend upon the cause of action or legal basis which entitles you to commence legal proceedings. For example:

In a case of negligence, a person must show that the other party owed them a duty of care, that this duty was breached and that the person suffered damage as a result.

A person claiming breach of contract must first show the existence of a contract, namely:

• That there was an agreement between the parties,
• That the parties intended to create a legal relationship and;
• That consideration (that is, something of value) was provided as part of the bargain.

Admissibility and relevance

Evidence will only be admissible (allowed into court) if it is relevant. Evidence will be relevant where its existence tends to indicate that one of the facts in issue is more or less likely. Basically, the court will ask whether the evidence you are trying to introduce would help to decide the issue(s) before it. For example, in proving a breach of duty in a negligence claim, evidence about current financial hardship is unlikely to be relevant.

Evidence can either be:

• directly relevant, where it includes an observation, perception or description of a fact in issue; or
• circumstantially relevant, where the Judge or jury can use it to draw an inference which goes towards proving a fact in issue. Things like a person’s past habits or the existence of a motive can often be used as circumstantial evidence.

Circumstantial evidence can sometimes be very persuasive. For example, in a case of personal injury arising out of a machinery malfunction, the fact that an employer had been seen inspecting the machine the previous day might be used by a court to infer that they were aware that it was not working properly.

Exclusion of evidence (“exclusionary rules”)

While generally speaking, evidence that is relevant will be admissible, there are a number of exclusionary rules that may prevent evidence (however relevant) from being admitted by a court. If a judge decides in their discretion that the evidence is outside the rules, it will be held to be inadmissible and cannot be relied upon to prove the fact in issue. Whether one of these exclusionary rules applies in your case will be decided by the judge. If the trial involves a jury, they will be sent from the court to allow the matter to be determined in their absence.

Hearsay

Probably the most important of the exclusionary rules is known as the rule against hearsay.

Evidence that amounts to hearsay will not be admitted. Basically, this means that a person (person A) cannot give evidence of something another person (person B) said in an effort to prove that what was said by that person (person B) was true. For example, if Jeremy tells Robert that he had seen a third person, Susan, stab someone the previous day, Robert would not, as a general rule, be able to give evidence of Jeremy’s statement at Susan’s trial. Jeremy himself would have to be called to give the evidence of what he saw.

The hearsay rule applies not only to verbal statements, but also the contents of documents and non-verbal communication.

There are also several exceptions to the general rule. A statement, for example, which is made at the same time as the central event, will not be subject to the rule. For example if Robert had heard the victim yell ‘no Susan!’ while they were being stabbed, Robert would be able to give evidence of this fact.

The rule against hearsay will also not apply to statements which amount to a confession or admission. Accordingly, if Susan confessed her guilt to Jeremy, he would be able to give evidence of this confession, even though he did not see her do the stabbing.

There are several other exceptions to the rule against hearsay. Some of these are specific to information contained in documents. For further information on these exceptions consult the Evidence Act 1977 (Qld). There are also many textbooks written on evidence law that may be of use. You should check the Supreme Court Library Catalogue for these.

Opinion & expert evidence

As stated above, when a person gives evidence it must normally be a direct account of what he/she actually saw or heard. A person’s interpretation or opinion will not usually be admitted as evidence.

There are some exceptions to this general position. Firstly, a person’s opinion will be admissible where it relates to a matter within a person’s usual experience. For example, a witness will ordinarily be able to give evidence in relation to the time an event occurred, the weather or the general state or condition of an object.

Secondly, a person may give evidence of their opinion where they are an expert on a matter which falls outside the range of an ordinary person’s experience. Expert evidence may include the testimony of doctors, scientists or other specialised professionals. If your matter is a civil trial, you will be free to call expert witnesses as you see fit. It is important, however, to make sure that the witness you select has appropriate qualifications in the area of interest. If they do not, the judge may refuse to hear their evidence or disregard it.

Burden and standard of proof

Generally speaking, the person who brings an action is said to bear the “onus” or “burden of proof”. Accordingly, if you are the plaintiff (the person who commences the proceedings) it will be up to you to introduce evidence that supports your case. If you fail to do so, the case will be lost.

For a person to succeed in a court case, they must introduce evidence which is sufficiently persuasive: it is not enough simply to have more evidence than the other party. The level of evidence required in a particular case is known as the ‘standard of proof’.

In civil cases, the required standard of proof is known as the “balance of probabilities”. In simple terms, the balance of probabilities will be met if you can successfully establish that the claim you are making is more probable than not.

This can be contrasted with the standard of proof in criminal cases, which is “beyond reasonable doubt”. This means that the prosecution must bring evidence of such a standard that there would be no reasonable doubt in the mind of a reasonable person that the accused is guilty.

Presenting your evidence

There are many different types of evidence that can be used in a court case. Whatever form your evidence takes, it will need to be introduced by a witness. A witness is, essentially, someone who gives evidence in court. A witness may be called upon for a number of reasons – they may be asked to describe something they heard or saw or they will simply be required to verify that a particular document is authentic.

A witness can introduce evidence either orally in court, or by providing a written statement called an affidavit or statutory declaration which can annex documentary evidence. However, even if a witness prepares an affidavit, the other party may still require them to appear in court if they wish to cross examine them. This will be likely if the evidence is particularly significant or contentious.

For example, say you have a photograph of tyre marks on a road which you want to use to prove that the driver involved in an accident with you was negligent. To ensure fairness, it has to be proved where and when the photograph was taken to ensure that it relates to the particular collision and was not concocted. You could do this by calling as a witness the person who took the photograph, who would stand up in court and swear on oath the circumstances of taking the photograph. He or she would then be cross-examined by the other party. To make the evidence stronger, you may wish to call an expert in traffic accidents who could testify that the tyre marks show the speed of the vehicle or otherwise point to negligent driving. For the best evidence, you may also need to call an independent witness who can testify that they saw the driver driving erratically at the time of the accident.

Written or documentary evidence – disclosure

Any relevant written or documentary evidence in the form of reports, photos or witness statements will normally be provided to the other side before the hearing. The time for providing this evidence will usually be ordered by the court. The process in which each party is required to make any relevant documents it has in its possession available to the other party is called “disclosure”.

In certain circumstances, you can also compel non-parties to provide all documents relevant to the proceedings by issuing a Notice of Non-Party Disclosure.

Witness testimonies

Generally speaking, you are able to have anyone you wish appear as a witness in a court proceeding. You are also free to determine the order in which these witnesses appear. In calling witnesses, however, you will need to bear in mind the requirement that any evidence they present must be relevant. You should also note the possibility that certain evidence cannot be presented on account of various exclusionary rules discussed above.

All witnesses you intend to rely upon to give evidence should be served with a court document known as a subpoena. A subpoena compels the person named in the subpoena to appear in court. This document must be filed in the court registry before you give it to your proposed witness. If a person fails to comply with a subpoena they may be held in contempt of court (an offence for which they could be imprisoned).

You may also need to give each witness you call some conduct money to ensure they have sufficient funds to travel to court and appear in court when required.

Things to remember

In order to prove your case, your evidence has to be believed. If you say one thing and the other party contradicts what you say, then the judge (or jury) has to decide which version he or she accepts. The judge will make the decision on the basis of all of the evidence and his or her assessment of the character of each witness. The solicitor or barrister for the other side will try to question the reliability or character of you and your witnesses and point out the negative aspects of your case.

Judges are experienced in knowing what can and cannot be included in evidence. If the judge stops you from giving certain evidence, the judge is not trying to prevent you from making out your case, but rather letting you know that what you are saying will not help your case and it would be unfair to the other party to allow that evidence. The judge would make a similar decision if the other party was trying to use such evidence. You have the right to argue your points, but at the same time it is important to listen to the judge. The judge knows the rules and the law and must ensure that both sides are treated fairly.

Why not observe a court case?

You may find that the best way to get to grips with the rules of evidence in a court is by observing them in practice. This will allow you to see how a barrister or solicitor questions a witness and give you an excellent insight into court processes generally.

Most court hearings are open to members of the public. You can find out where and when court hearings will be occurring by checking the daily law-lists. The court schedule for any given day will be made available on this website by 6pm the previous evening.

Damages is a sum of money which is awarded by the courts for the purpose of replacing the monetary value of property or rights which have been lost or damaged, or to cover expenses, loss, pain and suffering relating to a victim’s injury or death.

Damages is a form of compensation. Compensation is a broader concept which encompasses, for example, money awarded under statutory schemes. On the other hand, damages are usually ordered by the court in actions for breach of contract or in tort (that is, a wrong or breach of duty).

Damages in contract

A contract is an agreement between two or more parties; either individuals or companies. If one party does not follow their part of the contract, then they may be liable to pay damages to the other. The aim of damages in contract law is to place the innocent party in the position which he or she would have been in if the contract had been followed. Damages in contract law will often be liquidated damages, that is, the amount of loss is capable of being calculated with reference to the contract.

Damages in tort

A tort is a civil wrong done by one party to another. An example of a tort is Defamation, where one person makes false comments or statements about another person (see our Defamation factsheets: Defamation – publications before 1 July 2021 & Defamation – publications from 1 July 2021). In this instance, money will be awarded to the second person to compensate them for the harm done to their reputation. As in contract, damages in tort are awarded to place the plaintiff in the position in which he or she would have been had the tort not been committed. A claim in tort gives rise to unliquidated damages; the worth of the damage can only be estimated, not calculated exactly.

Proof of loss and damage

In order to be awarded damages, the claimant (the person bringing the claim) will need to prove that he or she has suffered loss or damage as a result of the breach of contract or the wrong committed by the defendant. This means that the claimant will have to prove to a judge (or jury) that what they claim happened actually did happen. Documentation such as medical bills and receipts will be helpful in proving the claimant’s case.

Loss

Loss is damage, detriment, or suffering flowing from the act or omission of another. It is once this loss occurs that an action for damages or compensation can be brought. A common example of loss is that arising in personal injury cases. If you have suffered an injury that prevents you from working, then you may have suffered a loss of income. If you win your case and prove that you have not received income for a certain time period, then you will be entitled to compensation for your loss.

Injury

Injury can mean physical or mental damage to a person. This type of injury can include the aggravation, acceleration or recurrence of a pre-existing injury, prenatal injury, psychological or psychiatric injury, damage to crutches or aids of a similar nature, nervous shock, death resulting from injuries and disease. In the case of mental injury, the injury must be serious enough to amount to an identifiable psychiatric injury– merely being upset will not be enough to have a claim for damages.

Injury can also mean interference with a legal right, which will often be considered as having a monetary value, but does not require proof of damage. An example of this could be trespass to land, where the trespasser does not otherwise cause any damage.

Injury can also mean physical damage to goods or property.

Types of unliquidated damages

Nominal damages

This is where a court will award the claimant damages of an insignificant amount in a situation where a claimant has not suffered a loss but is still entitled to win the case. An example is the case of Constantine v Imperial Hotels [1944] KB 693, where the plaintiffs were refused accommodation in a hotel. The defendants had committed a tort by breaching their duty as an innkeeper to provide accommodation to paying guests. However, as the claimants could show no actual loss, they were awarded nominal damages of £5.

Contemptuous damages

This is where a court awards a very small amount of damages to indicate the court’s disapproval of the court action having been brought at all. This might be relevant in a Defamation action, where the court considers that the person bringing the action already has a poor reputation, and that the false statement made about the person is unlikely to damage their reputation much further.

Special damages

In contract, special damages are for losses reasonably supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach. For example, if one party knew that the other party would incur a fine if the contract was not completed on time, but still delayed the performance of the contract. In tort, special damages may include compensation for loss and expenditure actually suffered and incurred, for example, medical expenses and loss of income.

To be awarded this category of damages requires precise pleading and proof. This means that the claimant must ensure that they have strong arguments and strong evidence to back up the arguments. It would require exact details concerning, for example, the loss of earnings and medical expenses. These types of damages are most likely to be awarded in personal injury cases.

General damages

General damages are awarded where there has been a breach of a right which gives rise to an action without the need for proof of damage. For example, the tort of Defamation does not require any proof of actual loss to reputation, however, large amounts of money are routinely awarded for assumed injury to reputation.

Aggravated damages

These damages are awarded in cases where the tort is serious enough to justify the awarding of extra money to the claimant. Circumstances giving rise to these damages include improper conduct by the defendant, where the tort was committed in a manner particularly insulting and humiliating, and where significant injury to the claimant resulted, including suffering of an emotional or personal nature.

Exemplary damages

Exemplary damages are awarded in addition to general damages where the court wishes, in addition to compensating the claimant for their loss, to punish the defendant. For example, if a book is published which gives rise to an action for Defamation, then a court might award exemplary damages to balance out the profit made by the defendant in book sales.

Exemplary damages are rarely awarded by a court. That is because they are unrelated to any loss suffered by the claimant or to the effect of the tort upon the claimant. Instead, they are focused upon punishing the defendant. The same set of facts may give rise to both aggravated and exemplary damages.

Parasitic damages

Where an interest has been infringed which is separate to the tort being contested, parasitic damages may be awarded. For example, damages for loss of reputation have been awarded where the tort of false imprisonment has been proven.

Personal injury can relate to a physical or psychological harm or injury. A number of different laws cover personal injuries depending on whether the injury occurred at a workplace, in a motor vehicle accident or was caused by an act of crime.

LawRight factsheets about personal injuries

• Damages and loss

• Evidence and proof in civil proceedings

External resources

• Personal Injury Self-Help Kit – Online – Suncoast Community Legal Service Inc
• Personal Injury Self-Help Kit – PDF – Suncoast Community Legal Service Inc

This factsheet sets out the process to make a claim in the Federal Circuit Court (“the FCC”) under the:

• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Age Discrimination Act 2004 (Cth)

In most cases any claim under these laws must be started in the Australian Human Rights Commission (“the Commission”). The Commission will organise a mediation between you and the person you are complaining about to try to resolve your complaint. If no agreement is reached through mediation, the Commission will terminate your complaint and give you a Notice of Termination that will let you make an application to the FCC if you want to continue.

It is important to understand that the acceptance and mediation of a complaint by the Commission does not necessarily mean that the complaint has a good chance of succeeding. Pursuing a case beyond the Commission stage and going to court is time consuming. If you don’t have a good case and go to court anyway, you may be ordered to pay the other party’s legal costs, which can be very high. Therefore, before you go to court you should think about whether you have the evidence to prove your cause of action.

Time limits

An application to the FCC must be made within 60 days of the date on the Notice of Termination you receive from the Commission.

How to apply

To apply to the FCC under one of the above discrimination acts, you will need to prepare:

1. Application – Human Rights; and
2. Applicant’s Genuine Steps Statement.

Application – Human Rights

The Application – Human Rights has a number of different parts. Below are specific comments about some of the sections, but generally:

• You will be the Applicant and the Respondent will be the person or company who you allege has committed unlawful discrimination against you;
• At the bottom of the first page of the Application, you will need to set out your details, including a street address within Australia that you are happy for the other party and the court to send any relevant documents to; and
• Before you lodge your Application with the court you will need to attach a copy of the complaint you made to the Commission and a copy of the Commission’s Notice of Termination.

Part A – Final and Interim Orders

Under Part A of the Application, you will need to list the final and interim orders you are asking the court to make.

An interim order is an order you want the court to make straight away, before deciding your overall claim. This might include an order that you can have an extension of time to lodge your claim with the FCC if you did not file your Application within the 60 day time period.

Final orders are the orders you want the court to make after hearing your case, such as an apology or compensation.

It is important to note that damages in discrimination claims are designed to place applicants in the position in which they would have been if there had not been an act of unlawful discrimination committed against them – they are not designed to impose punishment on the Respondent. Generally, there are three types of damages you can claim:

• Special damages, which includes economic loss. An example would be loss of earning capacity if a person left their job because of sexual harassment. They could claim damages for the time between when they left the job and when they found an alternative job;
• General damages, which includes non-economic loss for hurt and humiliation; and
• Exemplary or aggravated damages. Exemplary damages are only awarded in limited circumstances where there is evidence of malevolence, spite or ill will.

It is essential that you have evidence of the loss and damage you say you have suffered.

Part B – Grounds of Application

In this section, you will need to set out the factual basis for your claim (that is, you will need to list the facts that demonstrate you have a cause of action). The purpose of this section is to tell the court your story and explain why you should get the orders you are asking for. Try to be as clear and concise as possible and relate the facts without emotion or personal comment.

The facts you will need to include will vary depending on what breach of the discrimination law you say has happened.

For example, if your complaint is that you were subject to age discrimination during an employment recruitment process, the facts you are relying on could look something like this:

On 1 March 2013 I saw the position of salesperson at Bob Egg Pty Ltd (“the Respondent”) advertised in The Courier-Mail.

On 12 March 2013 I forwarded my completed application for the position to the Respondent via email.

On 30 March 2013 I attended an interview at the Respondent’s premises at 100 Bob Egg Lane, Brisbane.

On 12 April 2013, I spoke to Susan Egg, a representative of the Respondent, by telephone. We had the following conversation:

Susan said: “Hi Larry, this is Susan. I’m calling to tell you that you have been unsuccessful in your application as salesperson at Bob Egg Pty Ltd.”

I said: “I’m sorry to hear that, can you give me any feedback about my application?”

Susan replied: “You had all the necessary qualifications but we were looking for someone younger than you to fill the position so we went with a different candidate.”

Since that time, I have applied for five other jobs but have been unable to secure a position.

Genuine Steps Statement

The Civil Dispute Resolution Act 2011 (Cth) requires that parties to court proceedings take genuine steps to resolve a dispute before commencing proceedings. For discrimination matters, this requirement is fulfilled by the mediation process you would have completed with the Commission as long as you genuinely participated in that process and did not unreasonably refuse any offers made by the other party.

Failure to take genuine steps to resolve a dispute before coming to court will not invalidate the court proceedings but may impact on what orders the court makes about costs at the end of the proceedings.

The Applicant’s Genuine Steps Statement requires you to list the steps you have taken to resolve the dispute before filing proceedings. For example, you might say:

• Attempts have been made to mediate through the Australian Human Rights Commission.
• The Australian Human Rights Commission has issued a Notice of Termination for matter [INSERT THE COMMISSION REFERENCE], which is the matter dealing with the dispute between myself and the Respondent which is the subject of this Application, on the basis that there was no reasonable prospect of the matter being resolved.
• The Respondent refused to participate in the mediation process before the Australian Human Rights Commission.

Filing and serving your documents

Once you have completed both forms you will need to lodge them with the court (called filing). You can file your documents online or in person at the Federal Circuit Court Registry.

There will be a filing fee payable to lodge your application (currently $55 but check current fees here). In certain circumstances you can apply for a waiver of this fee. See our Fee waiver guide – Federal Circuit Court factsheet for more information.

A sealed copy (which is a copy stamped by the court) will then need to be personally served on all the people you have named as Respondents at least seven days before the first court date.

For an individual, personal service means that the document must be taken to the person, the person must be identified as the person named on the document, and the document handed to them. If the person refuses to take the document, the person serving it may put the document down in the presence of the person to be served and tell the person what the document is. If you are not comfortable serving the creditor yourself, you can get a bailiff of the court or a process server to do it for you for a fee.

For a corporation, personal service requires you to go to the registered office of the corporation and to leave a copy of the documents with a person in the service of that corporation. The registered office of a corporation can be different from the company’s principal place of business. You should obtain a current company extract from the Australian Securities and Investments Commission which will show the company’s registered address.

In addition to serving any Respondents, you will need to give a sealed copy of your court documents to the Commission at least five days before the first court date.

Progress of proceedings

When you file your documents, you will be given a time and date for the first hearing of your Application, which will be a directions hearing. At the directions hearing, the FCC will give you and the Respondents a timeline to complete all the necessary documents and meetings needed to get the proceedings ready for a trial. Throughout the proceeding you can expect:

• To be served with a Response from the Respondent or a Notice of Address for Service – see rules 4.03 and 6.01(2) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules);
• To be required to file and serve affidavit material which will contain your evidence and that of your witnesses – see Division 15.4 of the FCC Rules;
• To receive affidavit material from any Respondents;
• To attend a mediation; and
• To attend a final hearing at which all your witnesses must be present to be cross-examined.

Useful links

You can get further information about discrimination from the following organisations:

Australian Human Rights Commission
P: 1300 656 419
W: http://www.humanrights.gov.au

Basic Rights Queensland (for disability discrimination)
P: 1800 358 511
W: http://www.brq.org.au