Tips for your hearing in the Federal Court or Federal Circuit Court
Last updated January 2023
Last updated January 2023
If you’re self-representing in the Federal Court or Federal Circuit Court, this resource will help with tips for hearing day. It includes tips for examining witnesses and insight into the court process.
This resource covers:
Before the day, you should prepare what you are going to say and the questions you are going to ask witnesses.
The applicant presents their side of the story first. The respondent is then given an opportunity to respond.
Both sides can call witnesses to support their case. The judge will usually order the parties to lodge affidavits or witness statements before the hearing from all witnesses the parties want to call.
The questioning of witnesses happens in three stages:
The applicant’s witnesses will be called first, and then the respondent’s witnesses. Witnesses are required to sit outside the courtroom until their name has been called to enter the court and give their evidence.
When questioning your own witness, you should ask open questions that allow the witness to tell their story in their own words. Try to start your questions with ‘who’, ‘what’, ‘when’, ‘where’ or ‘why’. Write down some sample questions.
When questioning your own witness, be careful not to ask questions that suggest the answer to the witness, which are known as ‘leading questions’. For example, a question that begins with ‘Isn’t it true that…’ is likely to be a ‘leading’ question and may be objected to by the other party.
Make notes about what information you would like the judge to hear from the witness, and tick off each point as you question the witness.
Remember, if the witness doesn’t give particular information, the judge cannot consider that information when making their decision.
It is important to be polite to everyone in the court room, even if you disagree with what they are saying. You shouldn’t interrupt anyone speaking in court, but you should take notes and assert your disagreement with what they say when it is your turn to speak or question a witness.
If you have filed affidavits or witness statements by witnesses who support your case, then the other party may wish to cross-examine those witnesses. Cross-examination is when a witness is asked questions by the opposite party or lawyer to challenge or test the witness’s evidence.
You should think carefully about the questions you would like to ask the other party’s witnesses. The answers should either help your case or weaken the other party’s case. One way you can do this is to suggest a different version of events to the witness. You can do this by asking questions such as: ‘I put to you that you said X to me’ or ‘I put to you that you did X’.
In cross-examination you are allowed to ask leading questions, or questions that suggest an answer, to the other party’s witnesses. However, you should not ask any rude questions or argue with the witness.
After your witness is cross-examined by the other side, you will have an opportunity to ask a few more questions on topics raised during cross-examination. With these questions, you can give the witness an opportunity to explain or correct anything raised during the cross-examination questions.
The questions you ask in re-examination should also be open (i.e: start your questions with ‘who’, ‘what’, ‘when’, ‘where’, or ‘why’). Your questions cannot suggest an answer or ‘lead’ the witness.
Objections generally arise when the opposing party asks a question which may be prejudicial or unfair. The other party may try to formally complain about the evidence a witness gives, the questions you ask a witness or something else that occurs during a hearing. This is known as an objection. You are also able to object to evidence or questions (by standing and saying ‘objection’) if you think they are against the rules of evidence. Some common objections include:
Notice of Intention to Cross-examine
It is your responsibility to tell the other party, in writing, which of their witnesses you want to cross-examine.
If the other party or parties want to cross-examine one of your witnesses, they must give you written notice. It is your responsibility to make sure that person comes to court. If your witness doesn’t show up, you might not be able to rely on what they have said in their affidavit to support your case.
If a witness that you are calling cannot come to court unless ordered to, then you need to ask the court to issue a subpoena. Serve the subpoena with plenty of time, so the witness can organise to be there.
When your final hearing has finished, the court either makes orders or puts off making a decision until later.
If a decision is made on the day of your hearing, write down what has been decided, and what you have to do or not do. Ask the court to repeat anything you have not been able to write down or that you don’t understand. A copy of the court’s decision and orders should be given to you on the day or sent to you.
If a decision is not made on the day of your hearing, this is called a reserved judgment. The court will contact you later to let you know when the decision or judgment will be given (also known as ‘handed down’ or ‘delivered’).
This resource was last updated on 2 November 2015. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.