The hearing

You should ask any other person who saw or heard something that supports your claim to prepare and sign their own witness statement. 

Examples of who could make a witness statement include people who: 

• ​were present when a loan was discussed or made
• can give expert evidence about something (for example, a dentist could make a statement about the quality or cost of dental treatment)
• saw the car accident.

In some cases, there will not be any other witnesses and you will only have your own witness statement. 

You need to allow plenty of time to have your witness statements written, signed, copied and sent to the other party and filed with the court at least 14 days before the hearing date (unless the court has ordered a different time). 

Instructions :

Plaintiff instructions for preparing witness statements

Defendant instructions for preparing witness statements

Samples:

Plaintiff sample witness statement – debt

Plaintiff sample witness statement – car accidents

Defendant sample witness statement – debt

Defendant sample witness statement – car accidents

The Court will usually order that your statements and evidence need to be filed with the court, and exchanged with the other party, at least 14 days before the hearing. 

You can file the documents with the court:

• ​​​in person
• by post to the court where your case will be heard, or
• using the NSW Online Registry. For more information see NSW Online Registry.

You can exchange the documents with the other party:

• ​​​​​​in person
• by post to the address for service in the statement of claim under the heading 'Further Details about the Filing Party'
• by fax or email if a fax number or email address was included in the statement of claim. 

If you are sending documents by post, make sure the documents will be received on or before the date they are due.

If you are filing and exchanging video footage, you should confirm with the court if they have the equipment to play the footage and in what form they want it, for example a flash drive.  

You should receive witness statements and evidence from the other party at least 14 days before the hearing date unless the court ordered a different time. 

When you receive the other party’s witness statements, you should read them carefully so that you understand the defendant's case. 

If you do not receive anything, you should contact the court and find out if anything has been filed. If witness statements have been filed, ask the court for a copy, or contact the other party and ask for a copy.

If nothing has been filed, you can tell the magistrate or assessor the next time you attend court. The magistrate or assessor may adjourn (postpone) the hearing, or they can disregard evidence filed late. 

A subpoena is a court order to a person or organisation to bring documents to the court on a certain date, or to attend the hearing to give evidence. You can't file a subpoena unless the court has given you permission. This is usually done at the pre-trial review.

If you have permission to file and serve a subpoena, you will need to do this at least five days before the date specified in the subpoena. It is difficult to get permission to file a subpoena in the Small Claims Division of the Local Court. You should get legal advice​ before you consider applying for a subpoena. For more information, see Step by step guide - Subpoenas.

The onus is on the plaintiff to show that the defendant owes the money claim. 

Write down the main points you want to say to the assessor or magistrate. You could use the following format: 

• ​​​State briefly the circumstances of your case and the money or goods you are claiming (if you are the plaintiff), or why you do not believe you owe the money or goods (if you are the defendant). 
• Mention the statements, documents and evidence that support your case.
• Explain which sections of the plaintiff’s statement of claim / or defendant's defence form, witness statements and evidence that you disagree with, and why. 
• Remember that the assessor or magistrate will have already read all the witness statements and evidence so you do not need to repeat everything that is in your statement. 

You will need the following documents with you at the hearing: ​

​The statement of claim and defence form as well as any cross-claim or defence to the cross-claim, if relevant

• Copies of your witness statements and evidence
• Copies of the other party’s witness statements and evidence
• If you filed and served a subpoena, copies of the subpoena and affidavit of service form
• Your notes for speaking to the assessor or magistrate
• A notebook and pen to make notes during the hearing.

For more information about the hearing, see Going to the hearing below​. 

For more information on how to pr​epare for the hearing, you can watch the video Small claims -The hearing. 

This video is available with the audio​​​ description.​

In Small Claims Division, matters are heard remotely unless an application has been made to, and granted by, the Local Court to allow an in-person appearance.

If you want to attend the hearing in person, you will need to seek leave at least five days before the hearing date. You will need to email the registry and explain your reasons. It is up to the court to grant leave. 

Appearing remotely 

If the hearing is dealt with remotely, you will need to find a quiet room and make sure you are prepared at least 30 minutes before the time of your hearing. 

In the Small Claims Division, hearings are heard remotely unless you apply for and are given leave (permission) to attend the Local Court in person.  

Appearing in person  

If the Local Court has granted leave for you to attend the hearing in person, you should make sure you get to the court at least 30 minutes early.

If you are running late, you should call the court registry to let them know. The court may dismiss your claim if you don't attend.

If you are appearing in person, you should:

• look for the court list, which will be stuck on the wall or a noticeboard in the waiting area. If it is a large court there may be lists for many different kinds of cases - look for the 'Civil List'.
  
• make a note of the number of your case in the list and check which courtroom your case is in
  
• ask a court officer or go to the court registry if you can't find your name on a court list
  
• go and sit in the chairs at the back of the courtroom (if the courtroom is open)
  
• sit near the courtroom door and wait for the courtroom to be opened (if it is closed). 
  

Be prepared to wait some time as other cases may be dealt with before your case.

If you wait outside the courtroom make sure you are close enough to the courtroom to hear if your case is called.

The magistrate or assessor may adjourn (close) the courtroom for morning tea, usually around 11:30am, or for lunch, usually from 1:00pm to 2:00pm. You will have to leave the courtroom during these breaks. 

Remember to turn off your mobile phone if you are appearing at court in person.

For more information on how to find your courtroom, watch the video  Finding your courtroom. 

This video is available with the audio​​​ description.​

Hearings in the Small Claims Division are ​held before a magistrate (called 'Your Honour') or an assessor (called 'Sir', 'Madam' or 'Assessor'). 

Hearings in the Small Claims Division are heard remotely unless the Local Court has given leave for the parties to appear in person.

If you are appearing in person, you should stand when a magistrate or assessor comes into or leaves the courtroom.

When you go in, sit at the back of the court and wait for your name to be called. Once it is your turn, 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. 

Sometimes you or the other party may ask the court to postpone the hearing to another date. This is called an adjournment. 

The magistrate or assessor may not agree to this unless there is a good reason. There may be an adjournment if either you or the defendant served witness statements and evidence late. 

If the magistrate or assessor does agree to an adjournment, they may make a costs order against the party at fault. For example, costs may be ordered against the party who served their evidence late. 

For more information on how to ask for an adjournment, watch the video Getting an adjournment.

This video is available with the audio​​​ description.​

The hearing is your chance to persuade the magistrate or assessor that your version of events is true. Remember that the magistrate or assessor is interested in the evidence that supports your case, not your opinions or feelings about the case or the defendant.

To win your case you need to prove that it is more likely than not that the defendant owes you the money, or was the driver at-fault in the car accident. This standard of proof is called 'the balance of probabilities'. 

Always be polite to the magistrate or assessor, other court staff and the defendant. Refer to the defendant or their lawyer as Mr/Ms and their surname. 

For more information, see What to do, say and wear in court​  in the Getting ready for court topic .

Possible settlement 

The first thing the magistrate or assessor may do is ask if there is any chance of the case being settled. If either or both of you answer yes, the magistrate or assessor may give you time to discuss settling the case. 

For more information about settlement:

• If you are a plaintiff see Settling your case in Making a claim.
  
• If you are a defendant see Settling your case in Responding to a claim.
  

Checking documents 

The magistrate or assessor will go through the witness statements and other evidence that has been sent to the court to check that: 

• ​you received all the documents from the other party
  
• the other party received all the documents from you
  
• the court has all the documents that both you and the other party have. 
  

If any evidence was served late there will be discussion about whether this evidence can be used during the hearing. The magistrate or assessor may decide that the evidence can't be used. If this happens with your evidence, you could ask for an adjournment, but unless you have a good excuse for serving your evidence late, you are unlikely to get one.

Presenting your case 

Hearings in the Small Claims Division are generally informal. The magistrate or assessor will ask you to speak first. When you have finished speaking, the defendant will speak. 

When asked to present your case, you should briefly: 

• ​​outline your case
  
• point out evidence that supports your case
  
• refer to your witness statements and other evidence
  
• point out any sections of the defendant's evidence that you disagree with, or where there are inconsistencies.
  

You can speak from prepared notes. This can be helpful if you are nervous.

The magistrate or assessor may ask you to explain some things in more detail or to move on to another point if they feel you have said enough about a certain issue or that you are speaking about something that is irrelevant.

If you want to make submissions on the law applying to your case, based on your legal research, you should do this after you have talked about your evidence. If you have copies of cases you can hand them up, and give a copy to the defendant. 

It is important that you do not interrupt the other when it is their turn to speak. Instead, you can make some notes of anything you want to comment on or clarify. At the end of the hearing, you will be asked whether there is anything else you want to say. 

Witnesses 

In the Small Claims Division witnesses usually give evidence in a written statement. 

If you were given leave (permission) at the pre-trial review for your witness to give evidence in person, you should ask your witness to wait outside the courtroom. 

When it is time for your witness to give evidence, a court officer will bring your witness into the courtroom and take them to the witness box. You should ask the witness to tell the court their name, address and occupation. You will then be able to ask them questions about their witness statement. 

After you have finished asking your questions, the other party will have a chance to question the witness. This is called cross-examination. After the cross-examination, you will be asked if you want to ask the witness any further questions. When your witness has finished giving evidence they have to leave the courtroom. 

If there are witnesses, your witnesses will give evidence first, followed by the defendant's witnesses. 

Once the magistrate or assessor has seen all the evidence, heard from witnesses (if any) and listened to submissions, they will usually make a decision. 

For more information on what to expect at the hearing, watch the video Small claims- The hearing.

This video is available with the audio​​​ description.​