In this article I explain some of the procedures leading up to and how to prepare for a final contested hearing in the NSW Civil & Administrative Tribunal.
I prepared this article for self-represented litigants. Sometimes self-represented litigants will contact Williamson Lawyers in the late stages of the proceedings, sometimes weeks or days before the contested hearing is scheduled, and request advice, assistance and representation at the contested hearing.
What is a directions hearing and a contested hearing?
A directions hearing is a procedural hearing. It is conducted over audio visual link and will usually take between 15 to 30 minutes. The purpose of directions hearings is to make “directions” to progress the proceedings to the stage where a final contested hearing is ready to take place.
A contested hearing, which may also be referred to as the “hearing” or the “trial” is hearing at which the parties will attend in person to argue their case. From this point onwards I will refer to the contested hearing as the hearing.
The Tribunal does not conduct hearings in the same way as a court will however there is a degree of formality and there is a procedure which is intended to ensure the parties receive a fair opportunity to present their positions.
A couple of preliminary points
It is important to understand that the Tribunal will generally not postpone a hearing. There will usually need to be very compelling and exceptional circumstances for the Tribunal to postpone a hearing.
Another important point is that leave (i.e. permission) is required to be legally represented in the Tribunal. Leave may be sought at the commencement of the hearing however this is risky, as there is no guarantee leave will be granted, especially if the other party does not have legal representation. Applications for legal representation should be made as early as possible prior to the hearing.
Directions hearings and the Tribunal’s procedure
Upon filing an application in the Tribunal there will generally be at least two directions hearings. The first directions hearing will usually take place within 3 to 6 weeks of the application being filed. The second directions hearing will generally take place after the parties have filed and served all of their documents.
If there have been delays in the preparation of the documents, or if issues have arisen, there may sometimes need to be a third directions hearing. In my experience in most cases there is not usually a fourth directions hearing.
One of the guiding principles of Tribunal is to facilitate the quick resolution of the real issues in the proceedings. This usually means that by the second directions hearing the Tribunal Members will be inclined to have a hearing date allocated, or alternatively will make orders with the intention of a hearing date being allocated soon.
For example, the Tribunal Member may say during the directions hearing that the proceedings will be “set down for hearing on the next occasion” or the noice of orders may provide that the parties are to take certain steps prior to the next directions hearing, so that a hearing date can be allocated at the next directions hearing. If you have notice that a hearing day will be allocated, it is important to prepare for this.
Factors to take into account before the contested hearing has been “set down”
As I have indicated above, once the Tribunal allocates the hearing date it is very difficult to change this. The hearing dates are not allocated by the Tribunal Members at the directions hearings, they are allocated by the Tribunal Registry based upon the dates the parties advise they are available.
To prepare to obtain a hearing date it is important to known the availability of your witnesses. The witnesses are the people who prepared the witness statements and affidavits and the consultants who prepared the expert reports. Hearings can be allocated three or four months in advance and it is important to be aware of whether any of the witnesses will be away and not able to attend a hearing in person.
It is also important to have an understanding of how much time will be required to complete the hearing. Most of the time the Tribunal will allow a whole day for a hearing. Sometimes, if the issues are not complicated and there are not many witnesses it may allow half a day. If your dispute is complex, or if you have many witnesses, you may need to consider seeking a two day hearing. It is important to know this before the directions hearing as it is the Tribunal Member at the directions hearing who decides how much time to allocate to a hearing.
After the last directions hearing and prior to the contested hearing
There could be 3 or 4 months from the time the last directions hearing takes place to the time the hearing takes place. There are a number of things which may and should be done within this period.
Legal proceedings may have unpredictable outcomes and it is generally a good idea for the parties to attempt settlement discussions. Settlement discussions usually involve making an offer. Usually the offer involves some degree of compromise. Usually a settlement involves both parties making compromises. Settlement discussions can take time and it is best to start settlement discussions as soon as possible. There may also be tactical or strategic benefits to making an offer and settling the claim, or parts of the claim, prior to the hearing. For example, making a settlement offer may assist in recovery costs, such as the consultants fees.
There will usually be an order requiring the parties to prepare a chronology, a joint statement of facts and issues in contention, and a written opening submission. These documents do generally require some degree of legal knowledge to prepare and it is best to obtain assistance from a legal practitioner in relation to preparing these documents. However, if you prepare these documents yourself it is important to note that these documents should not introduce new issues or new evidence. These documents are summaries or extracts of the documents which have already been submitted. They are usually quite concise and deal with the issues specifically. The joint statement of facts and issues in contention may need to be prepared jointly between the parties. If these documents are required they usually need to be submitted to the Tribunal seven days prior to the hearing.
It is not that uncommon that I will be contacted around about three to four weeks prior to the contested hearing, which is about the time the parties have started to think about what will take place at the hearing and are unsure of how to proceed.
When this occurs I first need to obtain all of the documents. Copies of the application, all the documents filed and served by all the parties, and all the notices and orders made by the Tribunal need to be considered. I provide advice in relation to strengths and weaknesses, opportunities and issues. I prepare a plan and strategy to go into the hearing with the strongest position possible.
Sometimes there are issues which need to be addressed urgently. There may be jurisdictional issues (for example, there may be parts of the claim the Tribunal does not have the power to make orders in relation to) there may be deficiencies in the evidence which need to be addressed (for example, a consultant may not have properly prepared an expert report, and the report may be missing important details). If these issues arise Williamson Lawyers will act quickly to address them as best we can.
At the contested hearing
The hearing will take place in person. All of the witnesses will attend in person and be ready in the allocated hearing room prior to the designated starting time. Usually the applicants sit on the left of the Tribunal Member and the respondents sit on the right.
Prior to the hearing starting the Tribunal Member will attend to some administrative matters. The Tribunal Member will check that everyone is present and everyone, including the Tribunal, has copies of all of the documents the parties rely upon.
Once the administrative matters are addressed, the hearing will commence. The applicants will make an opening submission and then the respondents will make their opening submission. These submissions are a summary of the issues and the parties positions in the proceedings. These submissions may be based upon the chronology and joint statement of facts and issues in contention. If a written opening submission has already been provided it may not be necessary to make an oral submission.
After the opening submissions, the respondent will have an opportunity to question the applicants non-expert witnesses, and then the applicant will have an opportunity to question the respondents non-expert witnesses. “Non-expert witnesses” are referred to as “lay witnesses”.
The expert witnesses are usually questioned after the lay witness. The experts may be questioned separately however it is more common for them to be questioned by both parties together. This is referred to as giving evidence concurrently.
The purpose of the questioning (referred to as cross-examination) is to expose weakness in the other parties evidence so that the Tribunal will not accept their evidence, or will place greater reliance on your evidence.
When all the cross-examination has been completed the parties then make their closing submissions. The applicant will make a closing submission first, then the respondent, and then the applicant may have an opportunity to make a final submission in reply. The purpose of the closing submission is to present your argument based upon your documents and what has arisen in the cross-examination.
In the majority of proceedings, the Tribunal Member does not provide the decision on the day of the hearing. The Tribunal Member will usually “reserve” the decision, to provide time to review the documents in detail and prepare reasons. Often the Tribunal Member will require the parties submit a written closing submission. This will usually need to be submitted to the Tribunal within about 2 weeks after the hearing.
After the contested hearing
Depending on the complexity of the issues, and the volume of documents, it may take 1 to 3 months or more for the Tribunal to provide its decision. When the decision is provided it may provide the parties with an opportunity to make submissions on costs. This is because the awarding of costs usually depends upon the outcome of the proceedings.
Some practical tips in preparing for the contested hearing
The first tip is to be organised. Create folders on your computer for the Tribunal notices, your evidence, and the other parties evidence. Organise the documents in chronological order and name them appropriately. Keep all of the emails in a separate folder. This will ensure that if you need to obtain advice from a legal practitioner all of the documents can be provided in an organised manner. This will save the legal practitioner time sorting through the documents. Do not try and rely upon soft copies of documents at the hearing. Ensure that you have hard copes with you and tabulate the hard copies so that you are able to easily navigate through them during the hearing.
The second tip is to assume that everything will take longer than you anticipate. Settlement negotiations, preparing chronologies and written submissions, getting all of the documents ready for the hearing will take time and usually takes longer than expected. It is always best to start preparing early and if you think you may need legal advice, make enquires as early as possible.
The third tip is to make sure everyone else you are relying upon has prepared prior to the hearing. As it may take 3 or 4 months to obtain a hearing date the witnesses will usually need to take time to refresh their memory by reviewing the evidence. Make enquires with the witnesses a couple of weeks prior to the hearing to ensure that they are properly preparing for the hearing. This is particularily important in relation to the consultants who are giving expert evidence.
Williamson Lawyers is here to assist
If you have a hearing coming up Williamson Lawyers is here to assist. We specialise in strata and construction disputes. We have extensive experience preparing for hearings in the Tribunal. We work with the consultants to ensure they have properly prepared. We represent owners, owners corporations, builders, and developers. We can accept new matters late in the process and we will put in place a plan and strategy to ensure you have the strongest position going into the hearing.