Time limits under the Uniform Civil Procedure Rules 1999 (Qld) – additional requirements for corporations

Introduction

This factsheets summarises time limits for various stages of civil litigation as provided in Schedule 1A of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) specific to corporations. Unless otherwise specified, they are relevant to civil actions commenced in the Magistrates, District and Supreme Courts.

This factsheet should be read in conjunction with Time limits under the Uniform Civil Procedure Rules 1999 (Qld) which sets out time period requirements for civil litigation generally.

General rules under Schedule 1A of the UCPR

Rules for proceedings under the Corporations Act 2001 (Cth) (“Corporations Act“) or the Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”).

Supporting Affidavits Rule 2.4	An Application under the Corporations Act or ASIC Act must be supported by an Affidavit, setting out the facts and including an ASIC record search for the company that is the subject of the Application. This record search must be carried out no earlier than 7 days before the Application is filed.
Service of Originating Application and supporting Affidavit Rule 2.7(1)	After filing an Application to start a proceeding under the Corporations Act or ASIC Act, a copy of the Application and supporting Affidavit must be served on each respondent to the proceeding at least 5 days before the date fixed for hearing.
Service of Interlocutory Application Rule 2.7(2)	After filing an Application relating to an existing proceeding, a copy of the Application and any supporting Affidavit must be served on each respondent to the proceeding at least 3 days before the date fixed for hearing
Notice of appearance before the court in an Originating Application Rule 2.9(1)(b)(i)	A person intending to appear before the court in an Application to start proceedings (if named in the Application) must serve a copy of a Notice of Appearance on the applicant at least 3 days before the hearing.
Notice of appearance before the court Rule 2.9(1)(b)(ii)	A person intending to appear before the court in an Application relating to an existing proceeding (if named in the Application) must serve a copy of a Notice of Appearance on the applicant at least 1 day before the hearing.
Intervention in a proceeding by ASIC Rule 2.10(2)	If ASIC intends to intervene in a proceeding, it must file a Notice of Intervention and a copy of that Notice must be served on the applicant or any other party to the proceeding no later than 3 days before the date of the hearing.
Notice of hearing Rule 3.4(3)(b)	An applicant must publish a Notice of the hearing of any Application made under ss 411(4) or 413(1) Corporations Act 2001 (Cth) at least 5 days before the date fixed for the hearing of the Application.

Companies in liquidation

Applications made in reliance of S461(1)(a) Corporations Act 2001 (Cth) Rule 5.4(4)	An Application to have a company wound up must be supported by an Affidavit, and the Affidavit must be made within 7 days before the Originating Application is filed.
Consent of a liquidator on an Application for a company to be wound up Rule 5.5(3)(b)	An Application to have a company wound up must include the consent of an official liquidator who can act as the liquidator for the company, and a copy of the consent must be served on the company at least one day before the hearing.
Notice of application for winding up of company Rule 5.6(2)(b)	The applicant must publish a Notice of the Application for an Order that a company be wound up: at least 3 days after the Originating Application is served on the company; and at least 7 days before the date fixed for hearing of the Application.
Notice to official liquidator of appointment upon court ordering company to be wound up Rule 5.11(2)	If the Court orders that a company be wound up and an official liquidator be appointed as liquidator of the company, the liquidator must be informed of the appointment no later than 1 day after the Order for winding up is made.
Notice of appointment of provisional liquidator Rule 6.2	If the Court orders that an official liquidator be appointed as provisional liquidator of a company (with power over only some of the company’s property), the applicant must do the following no later than the day after the Order is made: lodge an office copy of the Order with ASIC serve an office copy of the Order on the company give an office copy to the provisional liquidator, and publish a Notice of the provisional liquidator’s appointment.
Liquidator to file Certificate and copy of Settled List of contributories Rule 7.4	If, in a winding up by the Court, a liquidator has compiled and certified a List or Supplementary List of Contributories, the liquidator must file the Certificate and a copy of the List within 14 days. See also section 478 Corporations Act.
Release of liquidator and deregistration of a company Rule 7.5	An Application for either: (a) the liquidator to be released; or (b) the liquidator to be released and ASIC to deregister the company; must include a Notice of the rule for Objecting to release of liquidator, as shown below. See also section 480 (c)&(d) Corporations Act.
Objecting to release of liquidator Rule 7.6	A creditor or contributory of a company who wishes to object to the release of the liquidator must file the following documents within 21 days after the date of service of the application for release: Notice of Objection (Form 13); If appropriate – an Affidavit. The creditor or contributory must also serve a copy of the Notice and Affidavit (if any) on the liquidator. If the liquidator is served with a Notice of Objection by a creditor or contributory, the liquidator then has 3 days to serve on the creditor or contributory a copy of the affidavit supporting their application for release
Distribution of surplus by liquidator with special leave of the court Rule 7.9(2)	When a liquidator applies to distribute a surplus, the liquidator must publish a notice of the Application at least 14 days before the date fixed for hearing of the Application. See also section 488(2) Corporations Act

Remuneration

Remuneration of receiver Rule 9.1	When a receiver of a company applies for an Order under the Corporations Act (s425(1)), to fix the receiver’s remuneration must do the following. At least 21 days before filing an Application the receiver must serve a Notice in Form 16 of the receiver’s intention to apply, and a copy of any Affidavit which the receiver intends to file (9.1(2)) to each of the following persons: the person who appointed the receiver; any creditor holding security over property of the corporation; any administrator, liquidator or provisional liquidator of the corporation; any administrator of a deed of company arrangement executed by the corporation; if there is no administrator or liquidator: each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and each shareholder who holds at least 10% of the shares in the corporation. Within 21 days after receiving these documents, any creditor or shareholder or any person listed above may give to the receiver a Notice of Objection to the remuneration claimed, stating the reasons for objection (9.1(3)). See also section 425(1) Corporations Act
Remuneration of administrator Rule 9.2 See also section 449E(1) Corporations Act	This rule applies to an Application by the administrator of a company or of a Deed of Company Arrangement for the court to fix the administrator’s remuneration under the Corporations Act (Cth) section 449E(1). At least 21 days before filing an Application the administrator must serve a notice in Form 16 of administrator’s intention to apply, and a copy of any Affidavit which the administrator intends to file, on the following persons: each creditor who was present, in person or by proxy, at any meeting of creditors; each member of any committee of creditors or committee of inspection; if there is no committee of creditors or inspection, and no meeting of creditors has been held, each of the 5 largest (measured by amount of debt) creditors of the company; each shareholder with at least 10% of the shares in the company. Within 21 days after receiving these documents, any creditor or shareholder may give to the administrator a Notice of Objection to the remuneration claimed, stating the reasons for the objection.
Remuneration of provisional liquidator Rule 9.3 See also section 473(2) Corporations Act	This rule applies to an Application by a provisional liquidator of a company for the court to fix the provisional liquidator’s remuneration under the Corporations Act s 473(2) . At least 21 days before filing an Application, the provisional liquidator must serve a notice in Form 16 of the provisional liquidator’s intention to apply, and a copy of any Affidavit which the provisional liquidator intends to file, on the following persons: any liquidator (except the provisional liquidator) of the company; each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; each shareholder who holds at least 10% of shares in the company. Within 21 days after receiving these documents, the liquidator, or any creditor or shareholder may give to the provisional liquidator a Notice of Objection to the remuneration claimed, stating the reasons for the objection.
Remuneration of liquidator Rule 9.4 See also section 473(3) Corporations Act 2001 (Cth)	This rule applies to an Application by a liquidator of a company for the court to fix the liquidator’s remuneration under the Corporations Act (section 473(3)). The Application must not be made until after the end of 28 days after the date of the meeting of creditors. At least 21 days before filing the Application, the liquidator must serve a notice in Form 16 of the liquidator’s intention to apply, and a copy of any Affidavit which the liquidator intends to file, on the following persons: each creditor who was present, in person or by proxy, at any meeting of creditors at which the remuneration of the liquidator was considered; each member of any committee of inspection; if there is no committee of inspection, and no meeting of creditors has been convened and held–each of the 5 largest (measured by amount of debt) creditors of the company; each shareholder who holds at least 10% of the shares in the company. Within 21 days after receiving these documents, any creditor or contributory may give to the liquidator a Notice of Objection to the remuneration claimed, stating the reasons for objection. If the winding up continues, details of any matters delaying the completion of the winding up must be given in the Affidavit (if any).
Remuneration of special manager Rule 9.5	This rule applies to an Application by a special manager of the property or business of a company for the court to fix the special manager’s remuneration under the Corporations Act (section 484 (2)). At least 21 days before filing the application, the special manager must serve a Notice in Form 16 of the special manager’s intention to apply, and a copy of any Affidavit which the special manager intends to lodge, on the following persons: the liquidator of the company; each member of any committee of creditors or committee of inspection or, if there is no committee of creditors or committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; each shareholder who holds at least 10% of the shares in the company. Within 21 days after receiving these documents, the liquidator, or any creditor or shareholder, may give to the special manager a notice of objection to the remuneration claimed, stating the reasons for objection.

Examination Summons

Service of Examination Summons Rule 11.4	An Examination Summons issued by the court must be personally served, or served in any other manner as the court may direct, on the person who is to be examined at least 8 days before the date fixed for examination.
Discharge of Examination Summons Rule 11.5	This rule applies if a person is served with an Examination Summons. Within 3 days after the person is served with the Examination Summons, the person may apply to the court for an order cancelling the Summons by filing: (a) an Application seeking an order cancelling the summons; and (b) an Affidavit stating the facts in support of the application.
Entitlement to record or transcript of examination held in public Rule 11.9(2)	The person examined may apply to the Registrar, within 3 years after the date of completion of examination, for a copy of the record or transcript of the part of the examination of the person held in public.

Court supervision of cases

The Uniform Civil Procedure Rules 1999 (UCPR) are designed to make civil matters move quickly and efficiently through the court system.

In addition to the UCPR, the Supreme Court has developed two systems that allow for judges to take on a more “hands on” approach to particular cases. These procedures are not available in the District or Magistrates Courts.

This factsheet explains these two systems:

• Caseflow Management; and the
• Supervised Case List.

Caseflow Management

The Supreme Court’s Practice Direction on Caseflow Management (PD 17/2012) sets out the Caseflow Management procedures. The Court has also produced a Plain English guide to this Practice Direction.

• The Supreme Court designates a Caseflow Judge to deal with matters that are on the caseflow management list (paragraph 4.2).

• Caseflow Review hearings are held on the last Friday of each month that the court sits (paragraph 4.3).

• The Caseflow Management system relies on email correspondence between the parties and the Registry, and if you receive an Intervention Notice, you are required to give the Court and other party an email address (paragraph 5.2).

• The Court has decided that if the parties are appropriately progressing their case, they should be ready for trial 180 days after a Notice of Intention to Defend is filed.

• If a Request for Trial Date has not been filed by this date the parties will receive a “Caseflow Intervention Notice.”

• If you are the plaintiff it is important that you respond to the Intervention Notice within 28 days, otherwise your matter might be “deemed resolved” (paragraph 5.1).

• This means that the matter is placed in abeyance, and that the plaintiff will need to seek the leave of the Court to take a step in the proceeding (paragraph 3.3).

You’ve received a Caseflow Intervention Notice – what do you do?

An Intervention Notice basically means that the Court requires the parties to either file a request for trial date, inform the Court if for some reason the matter has been resolved, or explain why the matter is not yet ready for trial and propose a plan to get the matter ready for trial.

If you don’t respond to the Notice, then the Court may list the matter for hearing, and may deem the matter resolved if the parties do not attend (paragraph 5.4).

Think about what steps are needed to progress the matter: are your pleadings in order? Has disclosure been completed? Are any experts reports needed? Have you considered mediation of the case?

You should approach the other side with a proposed order. Paragraph 6.1 of the Practice Direction has a list of the relevant steps that you should consider with the other side.

These include:

• applying for leave, or giving notice of your intention to take a step in the proceeding;
• applying to transfer the proceedings to the District or Magistrates Court;
• amending the pleadings;
• disclosure;
• bringing any interlocutory applications;
• providing for any alternative dispute resolution;
• any orders for expert evidence;
• any other directions necessary for the resolution of the dispute; and
• the filing of a Request for Trial Date or a Discontinuance by a particular date (that should be a day the Court hears Caseflow Review Hearings).

You might also receive a proposed order from the other side.

• If you can agree with the other side, the proposed orders are emailed to the Associate of the Caseflow Judge, who will then consider the order.
• If the parties cannot agree then the matter will be listed for hearing before the Caseflow Judge who will make orders.

Once an order is made, you should ensure that you comply with that order.

If you do not comply with a step set out in a Caseflow order then your matter can be deemed resolved.

If you are the plaintiff and you believe that you will be unlikely to comply with the date for taking a step, which if it is not taken will result in the matter being deemed resolved, you should write to the other side setting out:

1. The fact that you are unlikely to be able to comply with the date under a Caseflow order;
2. The amendments that you propose to be made to the Caseflow order; and
3. Propose that the parties contact the relevant Associate and Caseflow Manager, to notify them of these issues, so that the parties are not put to the additional costs of having to re-activate a matter.

Next, you should email the Associate to the Caseflow Judge and the Caseflow Manager by 12 noon on the day before the matter will otherwise be deemed resolved, giving an explanation of what has happened. If you have reached agreement with the other party, you should provide a draft consent order. If you have not reached agreement, you should ask that the matter be listed at the next Caseflow Review hearing (paragraph 6.5).

If you want to progress a matter that has become deemed resolved you need to apply to the Court for the proceeding to be reactivated. You will need to explain to the Court how the proceeding became deemed resolved and outline how you intend to progress the case (paragraph 8).

Supervised Case List

The Supervised Case List exists for cases that are likely to involve a considerable use of court resources either because the trial is likely to take more than five days, or because of the issues involved in the case, it is going to be particularly complicated.

Practice Direction 11 of 2012 sets out the procedures that apply to cases on the Supervised Case List.

Cases on the List are managed with a view to reducing the case down to the key issues.

It involves regular review hearings before a designated Judge, who sets directions for the progress of the matter.

There are three ways that a case can be placed on the List.

1. A judge of the Supreme Court can refer the matter to the List, either as a result of an application by one of the parties, or by decision of the judge.
2. A party can apply to the Supervised Case List manager for the matter to be placed on the List.
3. The Supervised Case List Manager can place a matter on the List.

If an application to have a matter placed on the Supervised Case List is brought, you will receive a Supervised Case List Questionnaire, which is designed to give the Supervising Judge more information about the issues in the case.

The Court will then set regular review hearings at which directions will be given about the progress of the matter.

In these review hearings the Court can consider a broad range of matters. These are set out in paragraphs 16 – 24 of the Practice Direction. These include:

• whether all the parties required to decide the case are part of the case;
• the pleadings filed;
• disclosure;
• alternative dispute resolution;
• whether any issues can be determined prior to the trial of the substantive case;
• expert evidence;
• trial arrangements (including trial plans, ways of giving evidence, and proof of documents); and
• the dates for any further reviews.

Commercial List

Complex commercial matters that involve disputes arising out of trade and commerce and that are likely to take more than ten days at trial can be placed on the Supreme or District Court’s Commercial List.

For more information about the Commercial List see:

• Supreme Court Practice Direction 01/2023, and
• District Court Practice Direction 08/2025.

Representing yourself at trial – Queensland Courts

This factsheet sets out the process for civil trials in the Supreme and District Courts once a matter is ready for hearing. Please see our other factsheets for further information about the earlier steps in the court process.

Court procedure in the Supreme and District Courts is governed by the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Any forms referred to in this factsheet can be obtained from the Queensland Courts Website.

Preparation for trial

Evidence

When preparing for trial, you should carefully consider your reasoning, motivations, assertions of fact, legal references and correspondence to ensure your case is strongly argued and supported by evidence.

Consider your Cause of action. Consider if you have pleaded the material facts that you need to establish that Cause of action. Are the inferences that you are asking the court to draw properly made out and supported by the evidence?

Normally, you will have already provided to the other side all the written material, such as documents, witness statements and affidavits, that you intend to rely upon.

You should also keep in mind any pre-trial directions the court has made. This may include providing to the court and the other side a written outline or summary of your case.

Witnesses

You will need to identify what witnesses you intend to call to give evidence for your case. They should be subpoenaed, that is, given a court document which has been filed with the court requiring them to appear at the trial. It is often a good idea to reassure your witnesses and make sure they are aware of what the procedure will be when they come to court to support your argument.

To obtain a subpoena, you must file a Form 44, Request for Subpoena in the Registry together with the fees for the issue of a subpoena and any conduct money to the witness. You can also seek an order that a person attend court to give evidence, that they produce particular documents, or that they both attend at court to give evidence and produce particular documents.

General tips:

• The trial will usually run from about 10am – 4.30 pm each day, with a lunch break between about 12 – 2, at the judge’s discretion. The judge may also take morning and afternoon breaks.
• Your trial will be allocated a court room by the court staff. The Daily Law List for matters being heard in the District and Supreme Courts throughout Queensland is available on the Queensland Courts website. The Daily Law List for the Brisbane District and Supreme Courts appears each day in The Courier Mail and is also on display in the foyer of the court building. Ask security if you are not sure where to go – they are always helpful and approachable.
• Remain courteous at all times. It will be a stressful and frustrating experience, but the judge and court staff will be much more helpful if you are able to remain calm and courteous.
• If the other party is represented, do not talk to the other party directly – if you want to speak to them, you will need to communicate with them through their solicitor or barrister.
• Make sure that you have with you:
  • A pad of paper to make notes and write down questions
  • 4 copies of any new affidavits that you have not yet filed
  • 4 copies of any amended pleadings that you may have prepared
  • 4 copies of each of the documents that you want to tender as evidence (4 copies are needed so there is one for you, one for the other party, one for the judge and one for the court file. If there is more than one other party, then you may need more copies so that each party gets a copy).
• Listen carefully to the judge. The judge is under an obligation to give the parties to a case a fair hearing and an opportunity to present their case. This means that there is some obligation on a trial judge to ensure that a self- represented party has a reasonable opportunity to present their case. However, the judge must remain impartial and cannot give you legal advice. A Judge can provide you with an explanation of the court procedures. Chapter 12 of the Equal Treatment Benchbook of the Supreme Court contains the Guidelines that Supreme Court Judges have published on conducting trials.
• If your trial is in the courts in Brisbane, Cairns or Townsville, you may find it helpful to contact the Court Network for Humanity. Court Network is a not for profit organisation that coordinates volunteers who are available to support court users. While they do not provide legal advice, they can give you some support on the day. Their contact number is 1800 267 671.
• There is a difference between making submissions and giving evidence. Evidence is when you or your witnesses tell the court what happened, given under oath or affirmation. Submissions are not given under oath or affirmation, and are usually focused on the legal issues about the case. You can not give evidence unless you have been sworn or affirmed.

On the day of the trial

1. Arrive early
2. Consider talking with the other party’s solicitor or barrister about a settlement before the trial starts
3. Consider asking the other party’s solicitor about who they will be calling as witnesses and how long they expect to take:
   • you may be able to tell your own witnesses what time they are likely to be called to give evidence so that they don’t have to wait around at court all day long.
   • be careful though – if the earlier witnesses don’t take as long as expected, the later witnesses may be called sooner, and the court may issue a warrant for their arrest if they are not ready and waiting.

Start of the trial

1. If you are the defendant you should sit on the left hand side of the bar table. If you are the plaintiff you should sit on the right hand side of the bar table.
2. Complete an ‘appearance slip:’ Ask the court staff for one of these when you go into the court room. You will need to insert your name and which party you are (for example, the first defendant)
3. The judge will enter, and both parties stand and will be asked to ‘announce their appearances.’ The plaintiff or their lawyer will go first. The defendant, or their lawyer will be next. If there are a number of parties and you are, for example, the second defendant, then you will announce your appearance after the first defendant: “Jones, J-O-N-E-S, Robyn, the second defendant. I am self-represented your Honour.”
4. Procedural matters: Each of the parties may have some procedural ‘house-keeping’ to take care of before the trial can get underway.

This is where you can take the opportunity to file any amended pleadings (if you have one – you are more likely to be allowed to file an amended pleading if you have already given the plaintiff a copy well in advance of the trial) and any applications that need to be dealt with. An application is a request to the court by one of the parties for something, such as a request to strike out paragraphs of the plaintiff’s statement of claim or a request to file new material which has not previously been lodged.

Speak up – remember that you have as much right to be heard as any of the barristers. While the court has to give you a fair hearing to present your case, it is up to you to make the most of your hearing and present your best case.

The progress of the trial

Step 1: Opening statement by the plaintiff which summarises the case you intend to present in court.

Step 2: Evidence of the plaintiff

1. Witness called and sworn in (that is, swears an oath or makes an affirmation that their evidence will be truthful)
2. Witness questioned by plaintiff (“examination in chief”)
3. Witness examined by defendant (“cross examination”)
4. Witness re-examined by plaintiff
5. Process repeated with any other witnesses called by the plaintiff

Step 3: Opening statement by the defendant

Step 4: Evidence of the defendant

1. Witness called and sworn in
2. Witness questioned by defendant (“examination in chief”)
3. Witness examined by plaintiff (“cross examination”)
4. Witness re-examined by defendant
5. Process repeated with any other witnesses called by the defendant

Step 5: Closing statement by the defendant

Step 6: Closing statement by the plaintiff.

The closing statement should sum up the main arguments and evidence that have been presented to the court.

You will need to be present for the entire duration of the court hearing in order to put your case forward and to respond to what is put by the other parties.

It is likely that you will be required to give oral evidence at the trial. This means that you may be cross examined by the other party’s legal representation. If you are called to give evidence, you may be required to be in the witness box for as little as a few hours or for as long as some days. During that time, you cannot discuss your evidence or issues relating to your evidence with any lawyers or other witnesses.

What can you expect from the solicitor or barrister appearing for the other party?

Solicitors and barristers have a duty to act in their client’s best interests. Therefore, they will:

• Object to any evidence or submissions you present if unfair to their client, particularly if you make allegations that are unfounded;
• Question the reliability or character of your witnesses; and
• Try to put their client’s case in the best light and your case in the worst light (pointing out the negative aspects of your case).

The solicitor and barrister for the other party are not obliged to assist you in the conduct of your case and cannot advise you on the merits of your case. While they may offer to assist you with some procedural matters in order to ensure that their own client’s case is not disadvantaged, you are responsible for running your own case. They cannot advise you of the merits of your case because they are not your solicitor. However, as part of negotiations, they can point out what they believe are the weaknesses of your case.

Solicitors and barristers have a duty to the court to bring to the court’s attention any matter within their knowledge which affects the ability of the court to reach a fair decision and not to mislead the court in any way.

The opening statement

Use your opening statement to tell the judge about what it is that you want to prove, and the evidence that you will be producing to prove it.

This is not the time to persuade the judge that you’re right (that comes later) – it’s the time to let the judge know what evidence you will be producing so that the judge knows what to expect and why it is relevant to your case. Tell the court who you’ll be calling as witnesses.

Your opening statement should also be relevant – think about the key facts that you need to prove, look at your Statement of Claim or Defence – and tell the judge that you are going to prove those key facts.

• For example: “The plaintiff says that I… but I am going to call Joe Bloggs as a witness who will give evidence to the court about …”

You should not interrupt an opening statement by the other party.

Witnesses

In the opening statement – each party tells the court which witnesses they will be calling.

When you lead your evidence, you will ask the court to call each witness in turn.

The bailiff will go outside the courtroom and call the witness (who should be waiting outside). Only the parties to a case are entitled to be present for the entire hearing. Other witnesses must wait outside the court before they have been called on to give their evidence. Otherwise there is a risk that their evidence will be influenced by what they hear, and the trial judge is likely to put less weight on it.

The witness will enter the courtroom and sit in the witness box and the bailiff will ‘swear in’ the witness.

Evidence in chief

You already know who you are going to call as a witness and what facts you want them to prove to the court. You should prepare your questions for the witnesses before the trial has started. Lots of barristers read questions from a pre-prepared list.

Apart from some very brief preliminary questions, you cannot ‘lead’ your witness. Ask general questions only like “What happened?” and “Where did that occur?” You cannot make specific propositions to the witness about what happened and just ask the witness whether that is correct or not:

• For example, Patricia, the plaintiff in a motor vehicle accident case is questioning her housemate Alan about an injury. Patricia wants to prove that the accident happened when she was driving to work. Patricia starts off with a couple of leading questions, that establish some very basic initial facts, and that give some context to Alan’s evidence.

You live at 22 Jones Road, Camp Hill?

And that’s the same place that I live isn’t it?

I’m going to ask you some questions about the morning of 3 June 2012.

This is allowed.

However, Patricia can’t continue to ask leading questions such as

That was the day that the Defendant ran into me while I was on my way to work, wasn’t it?

Patricia could ask a question along these lines:

What happened on that morning in our house?

I had breakfast and then I ….

And what did I do then?

The witnesses answers to these questions would seek to show that Patricia left her house to go to work.

The questions must be directly relevant – think about the facts that you need to prove, and ask questions about those things. Once you have what you need in evidence from that witness, you can move on to the next witness.

The witness is not allowed to give evidence that is hearsay. Hearsay can be a complicated area of law. Hearsay is:

1. evidence of some out of court statement by another person that –
2. is put in evidence to prove that the statement is true.

For example, Patricia couldn’t introduce evidence from Alan that immediately after the accident she rang him up and said “I’ve been run into” to prove that she was involved in an accident. She could prove that she was in an accident by more direct evidence, eg evidence from the police who attended the scene, expert evidence about how the accident happened, evidence from the doctors who treated her at the hospital.

While an out of court statement can’t be relied on to prove that the statement is true, it can be used for some other purpose.

For example: Bob is suing Jane for misrepresentation. Bob says that Jane told him before he made a contract with a company she controlled, that she had lots of really wealthy friends, and that for an outlay of $10,000, Bob would make millions. Jane has since relocated to Taiwan.

Bob can introduce these representations – because he’s not using them to show that what Jane told him (that she has lots of really wealthy friends, or that he would make millions of dollars from the contract) is true, he is using this evidence to show that Jane made the representations to him. Bob’s evidence is not hearsay.

The day after this contract was made, Bob tells his friend Roger about his conversation with Jane. Roger’s evidence of what Bob told him would be hearsay. It would be being used to tell the court that Jane had given Bob those representations, which Roger is unable to confirm. He only believes it because Bob told him so.

Unless the witness is an expert, they are not allowed to give ‘opinions’ about things. They can only talk about events that actually occurred.

If you want to ask a witness to comment on a particular document (for example, you may want a witness to comment on the statutory declaration that they signed):

• Tell the judge that you want to show the witness a document – the bailiff will take the document from you and hand it to the witness
• Ask the witness about what the document is, whether they can recall when, why or how the document was created
• When you are finished asking the witness about the document, tell the judge that you would like the document “tendered as an exhibit.”

If you want to object to a question that has been asked, stand up straight away and say “Your Honour, I would like to object to that question because…” The Judge may ask you to clarify your reasons for objecting, and may then ask the other party for their views. The Judge will then rule on your objection

You should have a good reason for objecting. It is not enough to say that you disagree with the question or the answer it will produce. Grounds for objecting include lack of relevance, hearsay, non-expert opinion.

Trials can move very quickly. It’s important that you pay close attention to the questions that the other party asks – and also to the answers that are given.

Cross examination

Once the examination in chief is complete, the other party is then able to cross examine the witness.

Mastering cross examination is difficult, even for many lawyers.

Despite what you may have seen on television, cross examination is not an opportunity for bullying or arguing with the witnesses, ending in a teary admission that their entire evidence was lies.

If the witness is not going to say anything helpful to your case, it is usually best to not ask them any questions, unless you have to. By not asking questions, you will deny the witness the opportunity to build the other sides’ case.

A key principle in cross examination is known by lawyers as “the rule in Browne v Dunn.” This means that if you intend, in your summing up, to tell the court that what a witness has said was X, whereas what actually happened was Y, you must “put” that to the witness, and give that witness an opportunity to respond to your case.

For example, in a motor vehicle accident case, the Plaintiff says that he was driving along a single lane road and that the Defendant collided with him. The Defendant’s case is that the Plaintiff was speeding – the Defendant must “put” to the Plaintiff that the Plaintiff was speeding at the time of the accident.

You do this by asking the other party “I put it to you that ……”

In a medical negligence case, the plaintiff is claiming that he received extensive care from his mother. The defence denies that this took place, and their investigators have uncovered that she was working at the time. When cross examining the mother, the defence must “put” to the mother that she was in fact working at the time.

If used effectively – cross examination can be used to undermine the other party’s case.

Unlike evidence-in-chief, in cross examination you can ask leading questions. If you think the witness gave evidence that was untrue or misleading, you can say: “Isn’t it true that…” Some lawyers believe that you should only ask leading questions in cross examination.

Try and have any important questions prepared. Before the trial, think about what you want to get out of the cross examination. You can often prepare questions in advance of the trial date. Write down further questions that you think of while they are giving their evidence in chief.

Looking at the other party’s court documents and affidavits you will know what facts they are trying to establish. Think about how you can best respond to the evidence.

Take your time – if you need to check your documents to make sure you have asked all of the questions that you need to ask, then do so. The barrister for the other party will be taking their time to make sure they have covered everything with the witness, so you can do the same.

Many people may find being cross-examined an unpleasant and stressful experience.

Re-examination

After cross examination the other party can revisit any of the issues by asking the witness a few more questions. You can revisit issues that the witness has been cross-examined about if you think you need to clarify exactly what their evidence is about on a particular point.

Summing up

Each of the parties will then be given a chance to make closing submissions.

This is your chance to reiterate your case and persuade the judge that you are right and that you have either successfully proven your case, or defended the case against you.

Judgment

The judge will then leave the courtroom to ‘deliberate’ and make a decision. That is the end of the trial.

The judge will either hand down his decision on the day, or the matter will be adjourned. If that happens, the judge’s associate will call you when the judge has made a decision and will tell you what date and time the judge will deliver the decision. You will need to return to the court on that day to obtain the judgment.

Costs

When the judge hands down the decision, be ready to make submissions on costs, that is, whether the losing party should be expected to pay for the successful party’s legal costs. You can have written submissions prepared for if you win or lose.

For example, if you are successful, you could say to the court that you should be entitled to your costs because of Rule 681 of the Uniform Civil Procedure Rules 1991 which states that “costs …follow the event”. It may also be relevant to show how the other party caused delay or additional expense in preparing the matter for trial or unreasonably rejected offers of settlement.

If you are unsuccessful, you would need to make submissions on why you should not have to pay the successful party’s costs. Again, your conduct and their conduct throughout the litigation will be relevant.

Observing the court process

You may gain a better understanding of the hearing process by going to court and observing a matter prior to the commencement of your own case.

If you are in the Brisbane, Townsville or Cairns courts, you may be able to arrange a visit to the court building beforehand with the Court Network for Humanity to familiarise yourself with the building. You can contact the Court Network by telephone at 1800 267 671.

Most court hearings are open to members of the public. The Daily Law List contains a list of each matter that the courts are hearing on any given day. If you do decide to go to court to watch a hearing, dress smartly and behave in a respectful and courteous fashion.

Hearings in court – commonly used words

General Legal Terms

Adjournment: When a hearing is delayed until a later date. An adjournment will not automatically be granted.

Affidavit: A written statement of facts made under oath or affirmed before a notary public, justice of the peace, lawyer or other authorised officer. An affidavit can be used to support an application or can be used as evidence in court.

Affirmation: To confirm a legal decision, particularly (of an appeal court) to confirm a judgment made in a lower court.

Alternative dispute resolution: Various methods of resolving civil disputes otherwise than through the normal trial process. The court will encourage the parties to use an alternative dispute resolution procedure if the court considers this appropriate and should facilitate the use of such procedures.

Appearance: Coming to the court as a party, either in person or through a representative (i.e. a barrister). The judge will often state “I will take appearances” at the start of a hearing. The word “appearance” may also refer to a Notice of Intention to Defend (see below).

Arbitration: In arbitration, a dispute between two or more people will be decided by an impartial third party (called an arbitrator). Arbitration occurs outside the court process but is still binding on the parties. Arbitration may be agreed to by the parties, may be required by a provision in a contract for settling disputes, or may be provided for under statute.

Barrister: A legal practitioner specialising in court work, admitted to plead at the Bar.

Cause of action: A cause of action is the “legal wrong” that entitles a party brings a case to court, e.g. negligence, breach of contract, defamation. Without a cause of action you should not commence a court case because you cannot be successful.

Callover: A court procedure which involves numerous cases being listed before a judge or registrar and each being given a chance to advise the court of the progress of the case. As part of this process, the names of the parties involved in the case are called out. Those parties are then able to directly address the judge or registrar. It is then up to the judge or registrar to determine whether the case is ready for hearing and to provide parties with a hearing date.

Civil law: A broad division of the law that encompasses, among other things, the law governing business, contracts, estates, domestic (family) relations, accidents, negligence. Civil law is to be distinguished from criminal law (see below).

Conciliation: A process where an independent person meets with parties to a dispute in an attempt to assist in them coming to an agreement. The outcomes of a conciliation process will not be legally binding on the parties.

Contempt of court: Contempt of court is an offence resulting out of disturbance to the orderly administration of justice. Contempt typically occurs in one of two ways:

1. Where a person is rude or disrespectful to a judge or causes a disturbance in the courtroom;
2. Where a party wilfully fails to obey an order of the court.

Costs: The legal fees or expenses of a party to matter in the court. A court may order one party to pay all or part the costs of another party.

Costs order: When you engage a solicitor, you pay for their services in the same way that you pay for a plumber’s or computer repairer’s services. When the legal work includes litigation – taking or defending court action – then legal costs can be substantial, because there are many steps involved such as drafting the court documents, disclosing evidence and then the costs of the trial. In our legal system, the usual rule is that “costs follow the event” which means that the losing party pays the costs of the winning party. The law gives the judge the power to decide and order which party pays the costs, and judges can order a party that delays court proceedings or who unduly increases costs to pay them.

Court: A body established by law for the administration of justice by judges or magistrates.

Damages: Monetary compensation ordered by a court in response to a wrong committed by one party against another.

Debt or liquidated demand: A liquidated demand is a claim for a fixed amount, usually under a contract.

Declaration: A written statement made a person (the declarant). If the statement contained in a declaration is knowingly false, the declarant may be liable to punishment for perjury.

Defence: The case presented by or on behalf of the party being accused of a crime or sued in a civil lawsuit.

Defendant: The party sued in a civil lawsuit or the charged with a crime. In some types of cases (such as divorce proceedings) a defendant may be called a respondent.

Default judgment: A judgment that a court makes when a defendant who has been properly served with a claim and statement of claim fails to file a notice of intention to defend and a defence within 20 days.

Directions: Instructions given by a judge before the trial or hearing to assist the parties to properly prepare for the hearing.

Disclosure: The process by which parties to civil litigation are required to provide the other party access to any documents that may be relevant to the particular case.

Discontinuance: Occurs when a party who has started legal proceedings elects to abandon proceedings.

Evidence material: Evidence material, such as the statements of witnesses or contents of documents, that can be used by a party to support a claim made in court. For further detail see our factsheet Evidence and proof in civil proceedings.

Hearing: A proceeding conducted by the court to resolve issues or fact and/or law. The hearing allows the parties to present evidence in support of their claim.

Injunction: A court order forcing a person to do, or refrain from, doing something.

Injury: Infringement of a right or actual harm caused to people or property.

Interlocutory: An interlocutory matter is one that is dealt with between the filing of the application and the giving of the final hearing and/or decision.

Interlocutory hearing: An interlocutory hearing is any court hearing that deals with a procedural issue, and is different from a trial that finally decides the dispute between the parties.

Interlocutory steps: Interlocutory steps are those steps in the civil court cases that take place between the initial filing and then the final determination of the case.

Interrogatories: A series of written questions which one party may ask another party prior to the hearing. Interrogatories are designed to obtain admissions to assist the party asking the questions.

Judgment: The final order or set of orders made by a judge after a court hearing.

Judicial discretion: The right of a judge to make a choice, for example, deciding whether or not to grant an adjournment; deciding how much compensation to award to the party that wins a case.

Jurisdiction: The authority of a court to decide matters brought before it.

Lawyer: A general term for a person who practises law.

Leave: Permission to do something (when given by a court).

Legislation: An act of parliament; a statute.

Limitation date: A limitation period is a period of time within which a cause of action must commence in court or a step be taken in proceedings. The limitation date is the last day for commencing a court action or taking a necessary step in an existing action. Limitation periods vary between causes of action and between jurisdictions. If you have not commenced the action or have not taken the next step in the proceedings before the limitation date expires you may lose your opportunity to make a claim.

Loss: The fact or process of losing something.

Matter: A particular legal proceeding.

McKenzie friend: A “McKenzie friend” is a lay person who is entitled to assist a party present their case in court and sit with you at the bar table. A McKenzie friend is not a lawyer. You do not automatically have the right to have a McKenzie friend appear with you at court, you need to ask the leave of the court.

Mediation: A process in which an impartial third party assists the parties to a dispute in an attempt to bring about an agreed settlement or compromise.

Notice of intention to defend: In civil proceedings, written notice that a person intends to defend against the claim of another party. It must be filed with a defence.

Oath: A promise to tell the truth in court proceedings. A person will be subject to prosecution for the crime of perjury if he or she knowingly lies in a statement made under oath.

Obiter dictum: A statement by a judge made during a judgement which does not form part of the central reasons for the decision.

Order: A demand of the court. If you fail to comply with a court’s order you may be held in contempt of court (see above).

Originating process: A document that starts a proceeding in court.

Particulars: Details of an allegation of fact made by either side in civil proceedings.

Plaintiff: The party who initiates a lawsuit.

Pleadings: Written statements that define the issues to be decided in a case.

Precedents: Previous judgments of the courts relating to the same or similar issues. The term may also refer to examples of forms that must be filed at various stages of a proceeding.

Prosecutor: Generic term for the government’s attorney in a criminal case.

Prima facie case: A case which is supported with enough evidence that it can be said to be established on a preliminary basis. A prima facie case may then be dispelled by the evidence of the other party.

Ratio decidenti: The legal reasoning on which a judgement is based.

Remedy: An order made by a court to make up for a wrong. A remedy will often involve monetary compensation.

Service (serve): The sending or giving of documents to the other party to a case in accordance. The Uniform Civil Procedure Rules 1999 may set down a particular method by which service must take place.

Standing: The right to bring an action.

Statement of claim: A document that sets out the facts that support the claims made in the case.

Solicitor: A legal practitioner admitted to practice.

Statute: Legislation; an act of parliament.

Subpoena: A document issued in a legal proceeding requiring a person to give evidence or to produce documents to the court at a certain place and time.

Submission: A proposal or application submitted for consideration.

Summons: A document issued by a court directing a person to appear before it.

Tribunal: A body that exercises jurisdiction over a particular issue under powers conferred by legislation.

Unliquidated damages: Unliquidated damages are for an amount that the court must assess, for example, if you are injured in a motor vehicle accident, the court must still assess the compensation you are entitled to.

Without prejudice: A statement or offer made on the basis that it will not affect a person’s legal rights in later court action.

Writ: A written court order to do or refrain from doing something.

People in the court room

Agent: An independent person or company with authority to act on behalf of another.

Appellant: A person that starts an appeal in a court. Applicants, appellants, respondents, defendants etc. are generally called “parties”.

Applicant: A person who applies to the court to start a legal proceeding.

Associate: A judge’s personal legal assistant.

Bailiff: A court official, who keeps order in the courtroom and handles various errands for the judge and associate.

Barrister: A lawyer who presents cases in courts.

Counsel: A barrister.

Crown prosecutor: Legal representative of the government who institutes criminal proceedings against an accused person.

Defendant: Person brought to court to answer claims made by a plaintiff or to be charged with a criminal offence.

Litigants: People or companies who are parties to a dispute before a court.

Litigants in person: People who are a party to a dispute before the court, who have no legal representative and are conducting the matter on their own behalf (sometimes called self represented litigants).

Parties: People, organisations or corporations involved in a court case.

Plaintiff: A party who initiates a civil action.

Respondent: The person, organisation or corporation against whom legal proceedings have been started by the applicant.

Solicitor: A person who is qualified to perform legal services. Solicitors may appear on behalf of parties in court proceedings (though, in higher courts this is more commonly done by barristers).