File pleadings and other documents at the court registry

Pleadings are formal claims, defences and replies stated in documents throughout the court process. Originating processes are filed by the plaintiff and served on defendants within any limitation periods. More key documents must be filed at the court. Practitioner/client should obtain a ‘sealed copy’ of the relevant document after filing. This is a copy of the document that the court registry has stamped with the court seal indicating that the document has been formally filed at court.

There are different regulations for criminal and civil matters.

For a criminal matter the police or DPP will file their documents with the court to initiate court process.

For a civil matter the client (if a plaintiff) would need to file a statement of claim. If the client were the defendant, then they would be required to file a notice of appearance or defence.

A statement of claim is a document that is made up of a number of elements:

·      Type of claim: such as a mercantile claim (money lent) or sale of goods and services (work done)

·      Relief claimed: a monetary amount

·      Pleadings and particulars of the claim: specific details of the circumstances leading to the statement of claim

 

Seek leave to appear

A person has a right to appear before a Court if they are qualified as a solicitor and have a current practising certificate. Note: There are some jurisdictions where there are special rules in place for non-solicitors to appear in court. For example, in Western Australian Aboriginal Court Officers have the right to appear in court in certain matters. They hold a special certificate that gives them permission to do this.

In some Courts, a person who is not a solicitor may “seek leave” to appear. That is, ask for special permission to appear in a matter when they do not hold a current practising certificate.

The procedure for seeking leave to appear is:

·      stand when your matter is called by the Magistrate or when it is your turn to mention your matter

·      announce your appearance and ask the Court for leave to appear. For example,

·      ‘Your Honour, my name is Mr Morris, field officer with the Aboriginal Legal Service. I seek your Honour’s leave to appear in the matter of [state your client’s name].’

The Magistrate may immediately grant you leave to appear or they may ask you questions about what is happening with the matter and why you are appearing (rather than the solicitor in charge of the case). Some Magistrate may grant a person leave to appear on a mention, for example, but not on a bail application where it is presumed greater legal knowledge or training may be expected. A Magistrate may also refuse to grant leave.  

 

Prepare and submit request for adjournment, hearing date, call over or mention, as appropriate

When you appear in a court matter, you may need to request an adjournment, call over or hearing date, or another mention date It is important that you understand what each of these mean.

Adjournment: To suspend a court hearing to a future specified day. If an adjournment is granted, it will usually be for two or three weeks, but it can be longer depending on the reason. During this time, you should make sure you do everything you can to be ready for your next appearance in court.[1]

Call over: A call-over is a meeting where the Judge and the lawyers for both sides discuss any pre-trial issues. For example, a witness may need to give video evidence as they will be overseas at the time of the trial. Or the defence counsel might make a case for some evidence to be excluded. Alternatively, at some local courts, you might have to appear before a registrar who will ask you how you intend to plead. A trial date is set.[2]

Mention: In Magistrates' Court criminal matters, the first day on which a matter is listed at court. A case can only be heard on the mention day if it is a plea of guilty. There are no witnesses at the first mention and the magistrate makes all decisions based on the information presented.[3]

Hearing: A summary hearing will take place if the accused pleads not guilty to the charge(s). At this hearing, both parties present their case to the Court and a magistrate will determine the outcome.[4]

The process at a Hearing[5]

Prosecution case

·      the prosecutor will outline the evidence

·      each witness is led to the witness box and asked to swear an oath or make an affirmation to tell the truth

·      the prosecutor may question each witness to obtain their evidence, which is called the evidence in chief of the witness

·      the magistrate may ask each witness a few questions.

Defence case

When the prosecutor is finished questioning their witnesses

·      the defence lawyer or the defendant may then question (cross-examine) the witness to confirm or contest their evidence

·      the prosecutor may re-examine each witness to clarify anything

·      the defence lawyer may then submit there is no case to answer

·      if the magistrate finds that there is not enough evidence the case will be dismissed

·      if the magistrate decides there is a case to answer the defence lawyer can then call defence witnesses and the whole process will be repeated.

 

Final submissions

When all witnesses are questioned, the prosecutor and the defence lawyer will address the magistrate to sum up their cases. These are called submissions, and are usually given verbally but in some cases, you may need to provided written submissions to the court. If this happens you will be given directions as to when the documents need to be filed with the court registry.

The decision

After hearing all the evidence, the Magistrate may find the defendant:

Not guilty - the magistrate will dismiss the charges against the defendant

Guilty - the magistrate will decide on the penalty or set a sentence hearing.

After the decision, the magistrate will adjourn the court and the depositions clerk will call ‘all rise’ as the magistrate leaves the courtroom.

 

Contact opposing parties and negotiate an outcome or potential settlement, where possible

There are often many ways to resolve a dispute. Negotiation is one of them. It's usually better to sort out problems away from the court. Court can be costly, stressful, time consuming and may not lead to the outcome you want. Going to court should be a last resort. Legal practitioners should act in the best interests of the client, and work to ensure the best, most efficient and cost effective outcome.

Negotiation is the process where the client and the person they are in a dispute with each set out what they want and try to reach agreement. This can be done in writing or by talking to each other (provided there are no court orders preventing this). Often, negotiation can occur with the assistance of legal representation.[6]

In civil matters, if a practitioner considers settlement to be an appropriate method for their client, and the client is agreeable, they should contact the legal representation of the opposing party. This may be in writing or face-to-face. The practitioner should discuss with the opposing lawyer the prospect of negotiation. If the other party is agreeable, a date should be set up for the parties to negotiate an outcome, as opposed to going to court.

In criminal matters, it may be appropriate to, subject to your client’s instructions, to enter into a charge negotiation with the Police or the DPP. This usually involves writing representations to the Police or DPP. Each negotiation is different and depends on the facts of the case. You may for example request to have a charge or charges withdrawn, to amend the facts, to substitute a less serious offence in exchange for a plea of guilty.