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​What to expect during litigation

Once you have taken the first steps in civil litigation, you will need to prepare your case for hearing. Some of the steps you are most likely to undertake are:

    ​​NOTE: This list of activities is not exhaustive. It is simply designed to outline the events that are most likely to occur during any type of civil litigatio​n at the Supreme Court. ​

    Atten​d​​ing​ d​​​​irections hear​ings​

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

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

    Filing docume​nts in ​pe​​rson, o​​nl​i​​ne or b​y post​​​​

    You may file a document by delivering it in person to the Registry, or electronically via the Online Registry, or by post.

    You should comply with the following when filing a document:

    • If you are filing in person, bring the original document to be filed and a copy of the document. The registry will stamp and file the original document, and stamp the copy which will be returned to you. You will be responsible for making as many additional photocopies of the stamped copy that was returned to you as are required so that copies can be served on all the other parties, as well as ensuring that you keep at least one copy for yourself.
    • If you are filing by post send the original document and one copy of it. The Registry will file the original document and return the stamped copy to you by post. When you receive the stamped copy from the Registry you will need to make as many photocopies as are required to serve all the other parties as well as ensuring that you keep at least one copy for yourself.
    • Your documents should be in the approved form referred to in Section 1 of this document.
    • The Registry can refuse to file certain documents if they do not comply with the approved form. They may send you away to amend the documents if this is the case. This may cause your documents to be filed late which could have consequences in Court. To avoid this, make sure you use the approved Court Forms and follow the Rules about how to fill out those forms.
    • Not all documents can be efiled using the Online Registry. For further information about filing documents on the Online Registry and what documents can and cannot be efiled please see https://onlineregistry.lawlink.nsw.gov.au/content/
    • If you do file documents using the Online Registry you will still be responsible for arranging service of the documents.
    • Documents need to be filed by their due date. If you are unsure what this date is, check any orders made by the Registrar or Judge.  ​


    Seeking orders from​​ th​e Court by a Notice of Motion​

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

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

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

    Preparing written evidenc​e in an Affidavit ​

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

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

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

    ​​Issuing subp​​​oen​​​as​

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

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

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

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

    Undertaking D​​iscove​​​ry of documents​

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

    Applying for a​​n adjourn​ment​

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

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

    Trying to settle your case without a hearing​

    Th​e Court encourages all parties to try to settle their dispute thems​elves.

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

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

    Attending a hearing before a Judge

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

    You are not permitted to contact the Judge directly but may, if certain steps are followed, contact the Judge's Associate.  You must not seek legal advice from the Judge or the Judge's Associate about your case.

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

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