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If you make an application to recover unpaid wages and entitlements to the Federal Circuit Court using the small claims procedure, the judge may want to hear your case on the first court date. If this happens, some of the information that follows may still apply to your case and you should read it before you go to court.
There are a number of things that you will need to consider before the hearing and during the hearing. You can use the following step by step guide if you are representing yourself.
If the court made orders that you do not have to attend a hearing in person, you will not need to present your case at court, but you will still need to prepare, file and serve evidence. The judge will look at the evidence and make a decision without the parties being present. This is sometimes called having your case 'heard on the papers'. If you are not sure if you have to go to a hearing, you should get legal advice.
Even though your case may be listed at a certain time, it is a good idea to try to get to court half an hour earlier so that you can find out what courtroom your case is in. If you think you are going to be late, you should ring the court registry and let them know.
Before going to court make sure you have the phone number for the registry saved in your mobile phone.
There are often many cases listed on the same day and you may have to wait until your name is called. You can take a seat in the courtroom or, if the courtroom is full, you can wait outside. Make sure you do not leave the court building and are close enough to the courtroom to hear your name called. If you are not there, the court can decide your case without you.
The judge may close the courtroom for morning tea (usually around 11:30am) and lunch (usually from 1:00pm to 2:00pm). You will have to leave the courtroom during these breaks. The court officer or the registry can tell you what time the courtroom will reopen.
It is possible that you could be at the court for a few hours, and sometimes for most of the day, so you should make arrangements with your work or child-care if necessary.
Don't forget to turnoff your mobile phone before going into the courtroom.
At the hearing you should make sure that all your witnesses attend. If you don't know if they will attend, you should subpoena them. If your witnesses do not attend court their evidence may not be considered.
For more information about witnesses and gathering evidence,see:
If there are other cases listed at the same time, sit at the back of the courtroom and wait for your case to be called.
Once your case is ready to be heard, you should sit at the bar table at the front of the courtroom. Get out your papers and arrange them so you can find things when you need them during the hearing. Only put items on the table that you need. Do not leave your bags on the bar table.
The hearing is your chance to tell your story and to convince the judge that your version of events is true. Remember that the judge is interested in the evidence that supports your case and this is what you should focus on.
For more information on what evidence you need to support your case, see Evidence.
You should refer to the judge as 'Your Honour'. You should stand and bow when the judge enters or leaves the courtroom. Even if you have always referred to your employer by their first name, it is best to refer to them or their lawyer as Mr or Ms and their surname.
For more information, see Who's who in court.
Sometimes you or your employer may need to ask the court to postpone the hearing to another date. This is called an 'adjournment'. The judge may not agree to this unless there is a good reason. There may be an adjournment if you, your employer, or an important witness, has a good reason for not being able to make it to the hearing.
If the judge agrees to an adjournment, the party who asked for the adjournment may have to pay some of the other party's legal costs.
If your employer doesn't turn up to the hearing, the judge may decide to:
Once your case is called, and everyone is ready to start the hearing, the judge will first want to hear from you (because you made the application). They will want to know what your case is about and what your evidence is.
You should hand up (give) the judge the original affidavits or witness statements that you and your witnesses have prepared. When you hand them up you should say something like:
'Your honour, I hand up the affidavit of Ms A. Witness, sworn on 14 March 2013'.
Make sure you have copies of any affidavits or statements you want to hand up.
As you are a witness in your case, you will usually give your evidence first. This may mean swearing an oath or affirmation and then going into the witness box. Sometimes the judge will only want you to swear or affirm that what you have written in your affidavit is true and correct. Sometimes the judge will want you to read out your affidavit or statement to the court.
After you have given your evidence, your employer or their lawyer may want to cross-examine you.
If you have any witnesses, you will usually call them after you have given your evidence. Again, the judge may only want them to swear or affirm that what they wrote in their affidavit is true or correct, or they may require them to read out their affidavit or statement to the court. Your employer (or their lawyer) can cross-examine them.
For more information on how to present your evidence, see Arguing your case.
Sometimes, when there is a lot of evidence or there are many witnesses, the judge may not be able to finish the hearing in the time allocated. If this happens, the judge will have to adjourn (postpone) the hearing until the rest of the evidence can be heard. Depending on when the judge is next available, the adjournment may be for a few weeks or for a few months.
The judge will give you and your employer instructions on when to come back to court and who should come to court on that day. In some cases, your witnesses and your employer's witnesses will all have to come back to court for the rest of the hearing.
If you forget to write down the judge's instructions, you should call the court and ask them to tell you what they were.
The judge may give their decision straight after the hearing, or after a short break. Sometimes, the decision will be 'reserved'. This means that a decision is not given on the day of the hearing and the court will contact you when the decision has been made.
The judge will give reasons for his or her decision. For more information, see The decision.
If you lose the case, do not argue with the judge. It may be possible to appeal the decision. For more information about appeals, see After court.