What to expect at a hearing
Different types of hearings
After proceedings have been commenced in the Court, there will be a number of occasions when the matter is heard by the Court. Most of the occasions will be short and will occur before the hearing at which the Court finally hears and determines the matter. These pre-hearing appearances before the Court can be directions hearings or case management conferences. The hearing when the Court finally hears and determines the matter is the final hearing.
These pages of the Court’s website provide information on directions hearings, case management conferences, and final hearings and what parties can expect will occur at these types of hearings.
What is a directions hearing?
A directions hearing is a short hearing in a courtroom before a registrar (for Class 1 and 2 matters) a judge (for Class 3, 4, 5, 6 and 7 matters), or a commissioner for mining (for Class 8) matters. A commissioner may also undertake a directions hearing for tree and hedge disputes (Class 2 matters).
The directions hearing is not the final hearing where the matter is decided, but an opportunity to organise the parties and information so that all parties are well prepared for the appropriate resolution of the matter.
During the directions hearing, the appropriate method of dispute resolution is identified. This may be by conciliation, mediation or by a court hearing. A date for the final hearing or other method of resolving the dispute will be set at a directions hearing.
The Court’s Practice Notes set out the procedures to be followed for directions hearings as well as the usual directions given for the particular class of matter. The Practice Notes provide essential information. Further information on directions hearings for different types of matters is provided at types of cases.
At the directions hearing, the registrar, judge or commissioner will direct the parties in terms of what documents and information they need to file with the Court and serve on the other party.
Types of directions hearings
The Court conducts four types of directions hearings:
- In-court directions hearing – where the parties (or most commonly, their representatives) attend before the registrar, judge or commissioner in court (usually for the first directions hearing for Sydney and metropolitan appeals)
- Telephone directions hearing – where the parties (or representatives of the parties) talk with the registrar, judge or commissioner in a telephone conference call (usually for the first directions hearing for country appeals, tree and hedge disputes, and mining matters).
- Online Court directions hearing (available in Classes 1-4 & 8 only) – where the parties (or representatives of the parties) post electronic requests to the registrar and the registrar responds online (parties may utilise the Online Court facility for any directions hearings).
- Microsoft Teams directions hearing where the parties (or their representatives talk with a registrar, judge or commissioner from a remote location using Microsoft Teams application. All usual court etiquetts, protocols, procedures and restrictions apply.
What should be done before the directions hearing?
Specific information required
The relevant Practice Note for the class of matter will detail what needs to be done in preparation for the directions hearing. Each Practice Note specifies the information required for filing with the Court and serving on the other party (such as plans and surveys, statement of facts and contentions, and information sheet). Further information on preparing for directions hearings is provided for each type of matter at types of cases.
Short minutes of order
The parties should discuss and endeavour to agree upon the directions the Court should make at the directions hearing. These directions should be based on the usual directions (which are set out in a schedule at the end of many of the Practice Notes) usually made by the registrar, judge or commissioner. If the parties do not agree, each party should prepare their own short minutes of order, outlining the directions being sought.
Be prepared to fix a date for a hearing
As well as having the required information and short minutes prepared, parties should be prepared to assist the Court in making and accepting a timetable up to and including the final hearing date.
What happens on the day?
The Court Lists show where the matter is on the day before the directions hearing. Directions hearings with the registrar usually commence at 9.00 am, a judge at 9.15 am and commissioners at 9.30 am. If there are a number of matters on the list, the Court may divide the list into groups and allocate a “not before” time, which means matters in that group will not be heard by the Court until the identified time. “Not before” lists are identified on the daily court list. Times may vary and it is always advisable to check the daily court list.
The registrar, commissioner or judge presiding at the directions hearing might ask if there are any matters by consent. This refers to matters where the parties have reached agreement regarding the directions to be made by the Court. These consent matters will usually take less time and may be dealt with first.
Courtroom etiquette and seating arrangements
Bowing to the registrar, judge or commissioner is required upon entering or leaving the courtroom. This is a sign of respect to the Court whose authority is being exercised by the registrar, judge or commissioner. The registrar is to be referred to as “registrar”, the judge as “your honour” and the commissioner as “commissioner”.
The registrar, judge or commissioner sits at the Bench facing the courtroom. There will be a court officer and a court monitor sitting to the side of the Bench.
The applicant or applicant’s representative sits at the left side of the bar table when looking at the Bench. The respondent sits at the right side of the bar table. The applicant and respondent, or their representatives, are required to announce their “appearance” by stating their name and the name of the matter.
Usually, the short minutes of order as agreed by the parties will be adopted as long as they comply with the Practice Notes, promote the “just, quick and cheap” resolution of the matter, as well as any mandatory provisions in legislation. The registrar, judge or commissioner will make directions after considering these factors. Sometimes, the directions made may not be according to the parties’ wishes but in the Court’s view better promote the “just, quick and cheap” resolution of the matter or legislative provisions.
The registrar, judge or commissioner will fix dates for conciliation conferences and final hearing of matters. If mediation is an option, this will also be determined. Directions will also be given about documents to be filed and served, including timetables for these steps.
As the Court does not usually provide a written report of the outcome of directions made at the directions hearing, each party must carefully note the directions and timetable
Case management conferences
What is case management?
Case management involves the ongoing management by the Court of the conduct of proceedings from the time of commencement to finalisation of the proceedings.
Proceedings are managed to achieve four objects:
- the just determination of the proceedings
- the efficient disposal of the business of the Court
- the efficient use of available judicial and administrative resources; and
- the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties (see s 57(1) of the Civil Procedure Act 2005).
Case management policy
The Court has adopted a Case Management Policy (PDF , 38.1 KB), which provides information on case management and case management conferences.
When is case management to be conducted?
Case management of proceedings is to occur whenever the proceedings are before a judge, commissioner or registrar. In practice, the key occasions on which case management will occur are at directions hearings and in the conduct of the List for proceedings by a list judge, commissioner or registrar.
Particular matters, by reason of their nature, the difficulty or complexity of the issues involved, or the likely length of hearing, may benefit from case management in a specially fixed conference. Case management conferences may be conducted by a registrar, commissioner or judge depending on the type of matter and class of the Court’s jurisdiction in which that type of matter occurs.
Goals of case management conferences
At the case management conference, the presiding judge, commissioner or registrar will work with the parties or their representatives to:
- define the issues in the proceedings
- direct the appropriate use of evidence in the proceedings
- direct a timetable for the future conduct of the proceedings up to the hearing
- direct a timetable for the conduct of the hearing
- avoid delay between filing and finalisation of the proceedings
- ensure the cost to the parties of resolving the dispute is proportionate to the importance and complexity of the subject matter in dispute.
Further information on the goals of case management conferences and the directions which might be made to achieve these goals is available in the Case Management Policy. (PDF , 38.1 KB)
Who should attend a case management conference?
The person responsible for preparing and running the proceedings should attend the case management conference. The persons who attend should:
- have a thorough understanding of the issues in dispute;
- approach case management in good faith and with a genuine desire to discuss the issues in dispute;
- have the authority to respond to opportunities to minimise the issues in dispute or agree to potential solutions to the issues in dispute; and
- have the authority to agree to a timetable for the future conduct of the proceedings.
Case management conferences will usually be held in a courtroom or mediation room in the Court’s building at 225 Macquarie Street, Sydney. For country matters, a case management conference can be held by telephone conference in a specially equipped courtroom in the Court’s building.
Forms of final hearings
When the Court sets a date for hearing and disposing of the proceedings, the form of the final hearing needs to be determined. The Court offers a range of different methods of resolving proceedings and forms of hearing depending on the type of proceeding, the complexity of the case and the number of issues in dispute. The appropriate method of dispute resolution and form of the final hearing would have been discussed at the directions hearings of the proceedings.
For proceedings in Classes 1 and 2 and certain proceedings in Class 3 of the Court’s jurisdiction, the forms of hearings are court hearings and on-site hearings, and a combined process of conciliation and hearing. The rules of evidence do not apply although the principles of natural justice or procedural fairness still apply. Proceedings in Classes 1 and 2 and certain proceedings in Class 3 usually involve a site inspection.
For proceedings in Classes 4, 5, 6 and 7 and certain proceedings in Class 3 of the Court’s jurisdiction, the form of a hearing is more formal. The rules of evidence apply. A site inspection is not usually undertaken. The form of hearing is restricted to a court hearing.
Court hearings — general
As the name suggests, a court hearing is held in a court in a courthouse. Mostly, court hearings are held in a court in the Court’s building at 225 Macquarie Street, Sydney. The Court occupies a number of floors within the building and a directory board is located in the foyer that identifies the particular case and the relevant floor and court. Court hearings are open to the public. For proceedings involving land in regional New South Wales, court hearings are regularly heard in a nearby courthouse, if it is more convenient for the parties and their witnesses and a site inspection is required.
Court hearings — Classes 1 and 2 and certain proceedings in Class 3
For most appeals under Class 1 (development appeals, residential development appeals and miscellaneous appeals), Class 2 (tree and hedge disputes and miscellaneous appeals) and Class 3 (valuation objection appeals, claims for compensation for acquisition of land and miscellaneous appeals), the hearings will commence on-site at 9.30 am on the first day of the hearing. Again, the starting time and location would have been set by the Court at the directions hearing.
Parties should acquaint themselves with the Court’s Site inspections policy (PDF , 129.9 KB) that guides the conduct of site inspections. The Site Inspection Policy details the obligations of parties including the provision of evidence from local residents, expert evidence and access to relevant properties to allow for the Court to understand the issues in the proceedings.
The hearing in the Court commences after any site inspection at 12 midday (or later if the site is located away from Sydney or the site inspection requires additional time). On the second and subsequent hearing days, the Court hearing will commence in the allocated court at 10.00 am and conclude at 4.00 pm with lunch between 1.00 pm and 2.00 pm. A short adjournment may also occur around 11.30 am.
Court hearings have a consistent practice that involves an opening address, examining and cross-examining witnesses on their evidence and closing submissions. The commissioner may provide guidance on the appropriate practice but not on the presentation of a party’s case. Proceedings before a commissioner are to be conducted with as little formality and technicality as possible so as to resolve all issues expeditiously. The parties are not required to stand in matters heard by a commissioner and should address the commissioner as 'commissioner'.
An opening address simply outlines the case a party wishes to put before the Court. It is not the appropriate time for a detailed analysis of the evidence. For development appeals, residential appeals and miscellaneous appeals, which usually involves an appeal against a decision of a public authority in relation to an application for some form of approval, it is the normal practice of the Court for the public authority to give its opening address first, followed by the applicant.
During their opening addresses, the parties will normally tender documents and evidence statements on which they wish to rely during the hearing. The Court will deal with any objections to any documents and evidence statements sought to be tendered at this time. Further documents may be tendered during the hearing. Sufficient quantities of the documents and evidence statements being tendered must be available for the other party and the Court.
Following the opening addresses, each party will present their case with the public authority going first. In most cases, expert evidence is provided by way of individual expert reports and/or joint expert reports. Evidence by lay persons (non-expert evidence) is also regularly provided, particularly where contentions relating to impacts on the persons and their use and enjoyment of their land and home are raised, although this evidence is almost exclusively given on the site inspection by local residents. A party may ask questions of its own expert (examination-in-chief) or simply rely on the contents of the expert report/s. The opportunity is then provided to the other party to question the opposing party’s expert on their evidence (cross-examination). Any cross-examination should be limited to the contentions in the proceedings and the evidence provided by the expert.
Closing submissions involve a summary of the case the party has made to the Court, including the evidence provided during the hearing supporting the party’s case, and the outcomes and orders the party requests the Court to make. Closing submissions are not the time to introduce new evidence or matters not raised during the hearing. The applicant goes first to present their closing submissions, followed by the respondent public authority, with the applicant having the final right of reply.
Court hearings - Classes 4,5,6, and 7 and certain proceedings in Class 3
For proceedings in Class 4, Class 5, Class 6 and 7 and certain proceedings in Class 3 of the Court’s jurisdiction, court hearings are more formal and adversarial. Parties must stand when addressing a judge and should address the judge as "your honour".
Like Classes 1 and 2 and certain proceedings in Class 3, court hearings in Classes 4, 5, 6 and 7 involve an opening address, examining and cross-examining witnesses on their evidence and closing submissions, although in a different order.
The party seeking relief (the applicant in civil proceedings or prosecutor in criminal proceedings) generally makes the opening statement and seeks to read affidavits and tender documents. As the rules of evidence apply, a respondent/defendant may object to the admissibility of any affidavits or documents and the judge may disallow affidavits or documents, either wholly or partially, being admitted into evidence. Once the evidence sought to be relied on by the applicant/prosecutor is tendered, the respondent/defendant then seeks to tender its evidence, which is subject to the same process of objection by the applicant/prosecutor and ruling by the judge.
When the affidavit evidence has been read, the applicant/prosecutor may ask questions of its own expert (examination-in-chief) and then the respondent/defendant may cross-examine the applicant’s/prosecutor’s witness. Once the applicant’s/prosecutor’s witnesses have been exhausted, the respondent/defendant may examine his witnesses in-chief, followed by cross-examination by the applicant/prosecutor.
The applicant/prosecutor is first to present their closing submissions, followed by the respondent/defendant, with the applicant in civil matters, but not the prosecutor in criminal matters, having the final right of reply.
Court hearings — Class 8
A range of different civil proceedings under the Mining Act 1992 and Petroleum (Onshore) Act 1991 may be brought in Class 8 of the Court’s jurisdiction. Some matters may be more closely related to judicial review proceedings in the Court’s Class 4 jurisdiction. Court hearings of civil mining matters proceed in the same manner as has been described above for matters in Class 4.
As the name suggests, an on-site hearing is a hearing of the proceedings conducted on the site of the land that is the subject of the proceedings, such as the site of the proposed development. On-site hearings may be used for certain types of development appeals and tree and hedge disputes.
On-site hearings provide the opportunity for matters to be heard and disposed of entirely on the site and not in a courtroom. The Court may even give judgment on the site at the conclusion of the hearing, although decisions may be reserved, depending on the particular circumstances of the case. Proceedings that are set down as on-site hearings are generally matters that have a limited number of contentions.
Even though on-site hearings are conducted in a more informal setting than a court hearing, on-site hearings have the same status as if the hearing was conducted in a courtroom. Parties should prepare for an on-site hearing in a similar manner to preparing for a court hearing, unless otherwise directed to do so by the Court.
The usual time for commencement of an on-site hearing is 9.30am. When the proceedings are fixed for an on-site hearing, the starting time and the meeting place will be specified by the Court at the directions hearing.
Requirements for a suitable location to conduct the hearing (or an alternate location, if necessary) and appropriate facilities are set out in the Site Inspection Policy (PDF , 129.9 KB).
The Court provides two different forms of conciliation conferences, being mandatory conciliation and hearing under s 34AA of the Land and Environment Court Act 1979 and conciliation conferences under s 34 of the Court Act, although the two different forms of conciliation conferences share some similar requirements.
Both require, as the initial stage of the conciliation conference, the exploration of the contentions with the assistance of the presiding Commissioner, to determine whether an agreement or partial agreement can be reached. This requires both parties to act in “good faith”. The “good faith” provisions include the parties having authority or delegation to enter into an agreement, or accept amendments that would overcome a contention, if total agreement cannot be reached.
For mandatory conciliation and hearing under s 34AA of the Court Act, the parties are to be prepared for the matter to proceed to the hearing stage, if an agreement is not reached at the conciliation stage. This, in most instances, will require the provision of evidence in accordance with Court’s usual practices (Practice Note – Class 1 Residential Development Appeals (PDF , 95.7 KB)).
Conciliation conferences often commence on the site of the land that is the subject matter of the proceedings, such as the site of the proposed development. The usual starting time is 9.30 am. The starting time and meeting place will be specified in the Court’s order directing the conciliation conference.
Depending on the particular proceedings, the facilities at the site or the need to hear any evidence in a more suitable location, the Court may adjourn the proceedings from the site and recommence the conciliation conference and hearing in a courthouse in Sydney or regional area. The commissioner will discuss with the parties, prior to leaving the site, the appropriate arrangements for recommencing the conciliation conference and hearing.
The procedures for conducting a conciliation conference are set out in the Conciliation Conference Policy. (PDF , 139.7 KB)
Judgements after hearings
Following the completion of the hearing, the presiding judge or commissioner will advise the parties of the means by which the judgment will be delivered. Generally, this will involve one of two different ways. When the presiding judge or commissioner indicates that the judgment will be "reserved", this means that the judgment is to be prepared as a written document and delivered at a later date. The parties will be given notice of the date and location, by the Registry or the Judge’s staff, when the judgment will be delivered.
Alternatively, the presiding judge or commissioner may deliver an oral judgment at the time (called an "ex tempore" judgment) at the close of the hearing or the following morning. Ex tempore judgments are delivered orally, with the judgment transcribed after delivery. Copies of the transcribed judgment will be provided to the parties.
Soon after reserved judgements are handed down and ex tempore judgments are transcribed, they will be available on the NSW Caselaw website.