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Discrimination toolkit

Courts and tribunals

Courts and tribunals cover pictureGeneral Information

As you know from the previous sections, you cannot take a discrimination complaint directly to a court or tribunal. You must first go to the ADB or the AHRC. It is only if your complaint is not resolved there that you might be able to take it to a court or tribunal to get a decision.

If you lodged your complaint at the ADB and it didn't get resolved, you go to the NSW Civil and Administrative Tribunal (NCAT).

If you lodged your complaint at the AHRC and it didn't get resolved, you go to the Federal Circuit Court of Australia (FCC) or the Federal Court of Australia (FCA).

NCAT is a tribunal and the FCC and FCA are courts. Tribunals and courts are different. Tribunals are more relaxed and informal than courts. Most tribunals, including NCAT, do not have to follow the same technical rules that a court does. This makes it easier to represent yourself in a tribunal. Also, there is usually less risk in a tribunal than a court that you will have to pay the other side's legal fees (costs) if you lose.

Discrimination case hearings in NCAT, the FCC and FCA are open to the public.

Remember, it is your choice whether to take your case to a court or tribunal.

If you are taking your case to NCAT, the FMC or FCA, here are some basic things you need to know.

What is everyone called?

When your complaint was with the ADB or the AHRC, you were called 'the complainant' and the other side was called 'the respondent'. In courts and tribunals, you will be called 'the applicant' and the other side will still be called 'the respondent'. Both the applicant and the respondent are called 'parties'.

If you go to NCAT, your case will usually be decided by one to three people who are called 'tribunal members'. Each tribunal member will have a name plate in front of them. When you speak to the members, you should usually call them Member and then their last name - 'Member Smith', for instance. To make sure you get it right, ask a staff member at NCAT on the day whether the member/s hearing your case have a preferred title or name.

If you are in the FCC or FCA, your case will be decided by a Federal Circuit Court or Federal Court judge. When you speak to the judge you should call them 'Your Honour'.

What do I need to prove?

In a court or tribunal, the 'onus of proof' is on you. This means that it is up to you to prove to the tribunal or court that you suffered unlawful discrimination. It is not up to the other side to show that they did not do anything wrong.

In discrimination cases, the 'standard of proof' (ie. the level of proof) needed is 'on the balance of probabilities'. This means you must convince the court or tribunal that it is more likely than not that you were discriminated against (that is, that it is more than 50 per cent likely to be true). This is easier to prove than the standard of proof in criminal cases (‘beyond a reasonable doubt’).

You prove your case by presenting evidence. Evidence can be documents, or oral (spoken) testimony from witnesses.

What do 'filing' and 'serving' mean?

Courts and tribunals will often ask you to 'file' (or 'lodge') and 'serve' documents. You file or lodge documents by giving them to the 'registry' (office) of the court or tribunal. You serve documents by giving them to the other side.

Courts and tribunals have strict rules about how documents have to be filed/lodged and served. You should always contact the registry to find out:

  • how many copies of the documents they want you to give them (which will include copies for them, for yourself, and the other side);
  • how you can file/lodge the documents;
  • how the documents should be served on the other side; and
  • when they have to be served on the other side.
Filing/lodging documents usually has two steps:

Step 1: Give the registry the number of copies of the documents they want - plus one copy for yourself, plus a copy for every respondent. You usually have to file/lodge the documents by going to the registry in person or posting the documents to the registry.

Step 2: The registry will put a court stamp on all the copies. They will keep the copies they need and give you back the others - one for you to keep and the copies for you to serve on the respondent(s).

Serving documents usually means giving a stamped copy of the documents to each respondent. Make sure you check with the registry about their rules for serving documents.

Here are some important things to know about serving documents:

When?

  • You have to serve the documents by the due date. When you file the documents, check what date they have to be served by.

Who?

  • If the respondent(s) has a lawyer representing them, and the respondent(s) has given their lawyer the 'authority to accept service' of court documents, you need to serve the documents on their lawyer. You serve the documents at the place where the lawyer works. The lawyer will usually have told the court or tribunal the address they want to use for service of documents.
  • If the respondent(s) is not represented by a lawyer and is an individual (not an organisation), you serve the documents on that person. If the respondent(s) is an organisation, you serve the documents on an employee of the organisation that has the 'authority to accept service'. This is someone the organisation has nominated to accept court documents on behalf of the organisation.

How?

  • Sometimes you can serve documents on the respondent(s) by posting, emailing or faxing them (always check with the registry to see if this is OK), but usually they have to be served in person. This is called 'personal service'.
  • If you need to personally serve documents on a lawyer or an organisation, you give the documents to an employee at the law firm or the organisation, but you have to make sure the person you serve the documents on has the authority to accept service. Ask them, "Do you have authority to accept service of court documents?" Don't just leave the documents at the front desk or give them to someone and hope they will be passed on to the right person.
  • If you need to personally serve documents on an individual, you should hand the documents to them in person.
  • You can serve documents yourself, or you can get someone else to serve them for you. There are businesses called 'process servers' you can pay to serve documents on your behalf. They are in the Yellow Pages under 'process servers'.
  • Whatever method you use to serve documents (post, in person, etc), it is very important that you keep records. If you fax them, print out a fax confirmation sheet and keep a copy. If you send them by post, send them by registered post so that you have a record that they have been sent. If you serve them in person, keep a note of the person you gave them to and the date, time and place. Ask that person to sign a note to acknowledge that you gave them the documents.
What is a 'summons' and a 'subpoena'?

They are the same thing: a document that contains orders of a court or tribunal. 'Summons' is the word NCAT uses and 'subpoena' is the word the FCC and FCA use.

There are three types of these orders: the first tells someone to come to the court or tribunal to be a witness; the second tells a person or an organisation to give documents to the court or tribunal; and the third tells a person or organisation to do both.

You have to apply to the court or the tribunal to get a summons or subpoena. You might do this if you think a person or an organisation has documents that might help you prove your case and they won't give them to you. You might also do it if you want someone to come to your hearing and be a witness for you.

A court or tribunal will only agree to your application for a summons or subpoena if you can convince them that the person or organisation has documents or information relevant to your case.

Talk to the registry staff about how to apply for a summons or subpoena. The courts and tribunals also have instructions on their websites about summonses and subpoenas (see Useful contacts).

Usually you will have to give the court or tribunal a draft of the summons or subpoena that you want them to approve. The most important things the draft has to include are:

  • the name and address of the person or organisation it is for; and
  • a clear description of:
    the documents you are asking them to provide, and the date they need to provide them by; or
    the date you want them to come to court or the tribunal if you need them to be a witness.

If the court or tribunal approves your summons or subpoena they will put a court stamp on all copies. They will keep one copy for themselves and give you back the rest. You then have to serve the summons or subpoena on the person or organisation by the due date.

When you serve the summons or subpoena, you also have to give the person or organisation 'conduct money'. This must cover their reasonable expenses related to providing the documents or turning up at court (for example, travel costs or meals).

A summons or subpoena for documents will include a date when the documents have to be provided to the court or tribunal. This is called the 'return date'. You should attend the court or tribunal on the return date. If you are not able to attend, contact the registry and let them know. You will find out on the return date if the documents have been provided or not. If they have been provided, you can ask to make copies. If they haven't, speak to the registrar or court official about what to do next.

Tip icon  Tip

Even if you've asked someone to come to court for you to be a witness and they've agreed, it is always a good idea to get a summons or subpoena and serve it on your witness anyway. They might need to show it to their boss so they can get the time off work.

There is also the chance that even if they agreed to come when they talked to you, they might change their mind and not turn up on the day. If you've served them with a summons or subpoena they are more likely to turn up.

Are there rules for how I should behave in a court or tribunal?

Yes. Here are some suggestions:

  • Wear smart clothes that you might wear to a nice dinner or a job interview, but make sure you are comfortable.
  • Be respectful to everyone in the courtroom no matter how much you disagree with what they are saying. Don't make comments, cause distractions, shuffle papers, mutter, roll your eyes or shake your head while other people are speaking. Don't speak rudely or sarcastically or argue with the judge or tribunal member. Doing any of these things might affect everyone's opinion of you.
  • Always ask the judge or tribunal member for permission before you do something - for example, ask for permission even if you just want to show a witness a document.
  • Bow your head to the judge or tribunal member whenever you or they walk in or out of the courtroom.
  • Address the judge or tribunal member(s) appropriately (see What is everyone called?).
  • Ask the 'court officer' (the court's staff member) where you should sit and keep that same spot throughout the hearing.
  • Stand up and sit down at the appropriate times. If you are in NCAT you can stay sitting when you are speaking to the tribunal members or the witnesses. Stand up when the tribunal members enter the room and when they get up to leave the room. If you are in the FCC or FCA, stand up when the judge speaks directly to you, and stand up when you are speaking to the judge or the witness, but sit down when the respondent (if they are representing themselves) or the respondent's lawyer is speaking.
  • Turn your mobile phone off while you are in the courtroom.