Chapter 12: General Division
12.1 What does the General Division do?
The General Division of the NSW Local Court deals with all claims over $20,000, up to a limit of $100,000. It can also deal with matters of less than $20,000, where the application is transferred from the Small Claims Division due to relative importance or complexity.
Parties are not required to have legal representation in the General Division. However, procedures can be complicated, so legal representation or close guidance is highly recommended (especially if the other party has legal representation).
Unlike the Small Claims Division, the formal rules of evidence apply and are strictly enforced. Evidence must be sworn and delivered in the correct form. Also, the risk of having to pay the other party’s legal costs (if you lose) becomes a real risk and deterrent in the General Division. Legal costs are not strictly capped, and an order to pay the winning party’s costs could quickly amount to thousands of dollars — in addition to the principal debt (see Chapter 13, Judgment, for more information on cost calculations in each division).
If you represent yourself, the magistrate cannot advise you on the presentation of your case but merely acts as a referee. Most magistrates will, however, ensure that self-representing parties understand what is happening and what is required.
At the hearing, witnesses are required to attend court to give their evidence and can be cross-examined under oath.
The main stages in General Division proceedings are:
- first call-over
- second call-over (if required)
- review date
- final hearing.
Preparing for the call-over
The first call-over is usually listed within six weeks of defence lodgment. Ideally, parties should use this time to gather relevant information from the other party, clarifying the issues in dispute and seriously investigating any possibility of settlement. During this period, parties can:
- Issue a request for further and better particulars if there is any ambiguity or lack of detail in the other party’s documents (see Chapter 17 for an example).
- Issue a notice to admit facts and authenticity of documents (UCPR Form 17). This form allows the parties to agree or disagree about specific issues and helps narrow down the facts which are in dispute.
- Make a reasonable ‘offer of compromise’ to the other party — this means that you put a formal offer, in writing, to settle the whole or specific parts of the matter under rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The offer must meet the requirements set out in this rule.
If you make a reasonable ‘offer of compromise’, under the UCPR, and the other party refuses the offer, this may indemnify (protect) you against having to pay all or part of the other party’s costs if the matter goes to a full hearing and you lose. Parties can make offers at any stage before the final hearing, and you can make more than one offer.
12.2 Call-over
Call-overs are run by registrars and are the first hearing in General Division matters. After filing of a defence, the court will send each party details about the time, date and location of the first call-over and a copy of the General Division Standard Directions (Annexure A of Local Court Practice Note Civ 1). This document outlines the standard directions made in General Division proceedings.
Parties must obtain any additional information they need, and make any necessary amendments to their pleadings, BEFORE the first call-over. That is, parties must be clear about their case and how they intend to prove it.
At the call-over, the registrar will assess the matter and do one (or more) of the following:
- explore the possibility of settlement
- refer the matter to mediation, with or without the consent of the parties
- refer the matter to arbitration, where there are no complicated issues, or the parties request arbitration
- direct the parties to complete a Civil Listing Advice (Annexure B to Local Court Practice Note Civ 1) — this form details witnesses to be called, documents to be relied on and estimates for hearing times
- fix a timetable for hearing — including the exchange of witness statements, orders for the preparation of written submissions on the applicable law, setting a review date (at least four weeks before the date for hearing) and a date for the hearing
- adjourn the matter and re-list for a second call-over, within 28 days, where it is not otherwise ready to proceed
- allocate a date for the return of subpoenas (see Subpoenas, Chapter 11).
If the matter is to proceed to a hearing, the registrar will want to set dates for review and hearing immediately. So, at the call-over, you will need to have a good idea about:
- What witnesses will have to be called and what documents or items those witnesses will need to tender.
- How long each witness will take to give their evidence and be cross-examined and, therefore, how long the hearing will take.
- If any of the witnesses are going on holidays or will be otherwise unavailable at any time, the court will want to know what dates are not suitable for a hearing.
You must attend the call-over (or send a legal representative). If you fail to attend without providing a reason, the registrar can strike out your case or defence. It is also essential to comply with any directions made by the registrar and the standard directions outlined in Annexure A to Local Court Practice Note Civ 1.
12.3 Arbitration
Arbitration is a form of alternative dispute resolution (ADR) where an independent third party considers the evidence, hears arguments and makes a formal determination. Many contested matters in the General Division, especially in larger city centres, are heard by way of arbitration for purposes of speed, cost and efficiency. If a case does not involve complex issues, and the hearing is likely to take three hours or less, it is likely to be referred to arbitration. Parties can also ask to have their matter heard by way of arbitration. Matters listed for arbitration are less likely to be adjourned due to inadequate time to hear the matter on the listing date (as can happen with matters listed before magistrates).
Arbitration is the same as a proper court hearing except that it takes place privately, in less formal surroundings, and is conducted by a senior private lawyer (usually a barrister) who sits in place of the magistrate. This means that you will need to prepare your evidence in the same way you would for a regular hearing. Witnesses will need to attend, and the arbitrator will hear and determine the matter as a magistrate would. The arbitrator’s determination becomes a binding court order.
There is an automatic right to have the case re-heard by the court if you disagree with the arbitrator’s decision (unlike decisions of magistrates). Either party can apply for a rehearing within 28 days of the arbitrator’s decision being made (for a fee). In these cases, parties need to file a notice of motion — rehearing after arbitration (UCPR Form 32). Part 5 of the Civil Procedure Act 2005 (NSW) deals with arbitration in NSW courts.
12.4 Timetable for hearing
If the matter is listed for a formal hearing before a magistrate, the registrar will make detailed directions (or case management orders) to prepare the matter for hearing.
File and serve witness statements
Generally, each party must serve all other parties with copies of their evidence at least four weeks before the review listing date. Witness statements must be written in affidavit form (UCPR Form 40) and should contain relevant and admissible evidence only. Affidavits must record what the witness has seen and heard, using as close as possible to direct quotes. The other party may object to an opinion, speculation, hypotheticals or hearsay in your witness statements. If the objection is allowed, the offending sections of your affidavit(s) may be struck out (not allowed as evidence). So, affidavits must contain accurate accounts of things seen or heard by the witness. Documents referred to in affidavits should ideally be annexed (attached), as supporting evidence.
Parties must not file their evidence before the hearing unless the court otherwise orders.
See the sample witness affidavit in Chapter 18.
Review date
A date for review of the matter will be set down at call-over and will be listed approximately four weeks before the final hearing date. The purpose of the review is to ensure that:
- parties have complied with the standard directions as set out in the hearing timetable
- everything is on track to proceed to hearing, and
- time estimates are accurate.
At the review, you should also be prepared to provide the following:
- information about objections to the other party’s evidence — for example, parts that are not relevant, hearsay or opinion
- written submissions on relevant case law and legislation
- a summary of agreed facts and issues.
12.5 The hearing
The court will list your matter for hearing at a specific time, date and location, and you and your witnesses must be available at the listed time.
The court does not readily grant applications for adjournment unless there are exceptional circumstances. If you do need to cancel (vacate) the hearing date, you will need to file a notice of motion (UCPR Form 20) at least 21 days before the hearing date. If this is not possible, it must be filed as soon as you become aware that you cannot attend the hearing.
If you (or any witnesses) need to attend the hearing via telephone or audiovisual link (AVL), you should ideally make your request at the call-over. Alternatively, make a written request to the registry at least 28 days before the allocated hearing date (using Annexure C to Local Court Practice Note Civ 1). Your application will be determined without hearing by a magistrate in chambers, and will only be granted if there are good reasons and it is ‘in the interests of justice’.
The information that follows will help you prepare your evidence and run your case in a General Division hearing (or arbitration). We do, however, recommend that you obtain legal advice and assistance if your matter is proceeding in the General Division.
The plaintiff’s case
The person who started the court proceedings, the plaintiff, will present their case first by calling witnesses and presenting their evidence. If self-represented, the plaintiff will sit in the witness box and tender their affidavit to the court.
Usually, the witnesses will be shown their previously prepared affidavit and asked if they confirm it to be true, and if they want to change anything it contains. The affidavit is then tendered to the court as an exhibit, and the magistrate reads it. If any critical points have been omitted, the court will usually allow further oral evidence.
Witnesses should use ‘current recollection’, rather than relying on notes. However, a witness may be allowed to refresh their memory from notes if they made the notes at the time of the incident in question — for example, a file note, an entry in a diary or a statement. These are called ‘contemporaneous notes’.
The other party can then question (cross-examine) each witness, in turn, about their evidence and try to undermine the evidence they have given. Being cross-examined by an experienced lawyer can be a traumatic and nerve-racking experience. Sometimes it can involve rapid questioning or rebuttal of everything you say.
Presenting the defence
After the plaintiff has presented all their witnesses, and the defendant has had the opportunity to cross-examine them, the defendant then calls their witnesses, and the process is repeated.
Re-examination
If other matters are raised after cross-examination, both parties have a chance to re-examine their witnesses (for example, to clarify a point that the other side has raised). The purpose of this exercise is to help the magistrate develop a clear picture of what has happened and make findings of fact.
Summing up
When each party has presented all their evidence, they are given a final opportunity to summarise their case and arguments. Your final submissions are an opportunity to highlight the strengths of your evidence and the weakness in your opponent’s. You can also raise any legal arguments (legislation/cases) that you want the court to consider.
The magistrate will decide which version of facts to accept, on the balance of probabilities, and then apply these facts to the relevant law.
12.6 Rules of evidence
The court wants to hear relevant facts. It wants to hear what people saw with their own eyes, did with their bodies and heard with their ears. For example, a witness could testify to the length and location of skid marks on the road, or a witness who saw a car go through a red light can testify to the location and amount of damage to the cars in an accident.
The court will be reluctant to receive evidence that is not a first-hand observation. This is known as the ‘rule against hearsay’, which means that hearsay is not admissible as evidence. For example, the court will not accept that Bill heard Janet say that she saw David go through a red light as evidence that David went through the red light. Janet will have to give the evidence of what she saw herself. Janet would have to be the primary witness. Bill’s recollection of Janet’s prior conversation, however, could be used as evidence that Janet is now lying if she has changed her story.
The same idea applies to documentary evidence — an original document is, for example, more likely to be accepted than a copy. There are exceptions to the hearsay rule, but these can be complex. If you think your evidence may contain hearsay, you should consider getting legal advice.
The court considers witnesses in two categories:
- Ordinary witnesses — who can say what they saw, heard or did. They are not allowed to express an opinion or interpret what they witnessed; and
- Expert witnesses — who are qualified as having expertise (training and experience) in a particular area — for example, doctors or consulting engineers. Given their expertise, these witnesses can express an opinion or interpretation on things within their area of expertise.
The question of relevance
The court only wants to hear what is relevant to the issues in dispute. So your evidence must support the grounds on which you based your case or defence. When preparing your evidence, think carefully about why you believe the evidence is or is not relevant. Does it help you or not? What are the risks of continuing to argue about relevance? Does it just mean higher legal costs if you lose? Remember, it is your responsibility to ask all the questions and present all the evidence relevant and necessary to your case. The magistrate or arbitrator may ask questions from time to time, but their role is like a referee, not an investigator.
Tendering documents and other items
Supporting evidence may include documents, photographs, diagrams, quotations or pieces of the damaged vehicle. Witnesses may first be asked to identify and authenticate (prove the origin or credibility of) a piece of evidence. Evidence is then handed to the magistrate or arbitrator for consideration. This process is called tendering evidence. You may challenge the tendering of evidence if, for example:
- you dispute its authenticity
- you dispute its relevance
- you question the witness’s ability to establish authenticity.
You might argue, for instance, that this was not the person who took the photographs, that the photographs are not contemporary, or that the type of camera or film distorted the image. Questioning evidence may result in it being struck out; but may also increase time and costs. If you agree with the authenticity, or think you can use the evidence in your favour, then you may wish to shorten the process by agreeing to the tendering of the evidence. Once accepted by the court, tendered evidence is called an ‘exhibit’.