Representing yourself at trial - Queensland Courts
This factsheet sets out the process for civil trials in the Supreme and District Courts once a matter is ready for hearing. Please see our other factsheets for further information about the earlier steps in the court process.
Court procedure in the Supreme and District Courts is governed by the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Any forms referred to in this factsheet can be obtained from the Queensland Courts Website.
- 1 Preparation for trial
- 2 Evidence
- 3 Witnesses
- 4 General tips:
- 5 On the day of the trial
- 6 Start of the trial
- 7 The progress of the trial
- 8 What can you expect from the solicitor or barrister appearing for the other party?
- 9 The opening statement
- 10 Witnesses
- 11 Evidence in chief
- 12 Cross examination
- 13 Re-examination
- 14 Summing up
- 15 Judgment
- 16 Costs
- 17 Observing the court process
- 18 Contact us
Preparation for trial
When preparing for trial, you should carefully consider your reasoning, motivations, assertions of fact, legal references and correspondence to ensure your case is strongly argued and supported by evidence.
Consider your Cause of action. Consider if you have pleaded the material facts that you need to establish that Cause of action. Are the inferences that you are asking the court to draw properly made out and supported by the evidence?
Normally, you will have already provided to the other side all the written material, such as documents, witness statements and affidavits, that you intend to rely upon.
You should also keep in mind any pre-trial directions the court has made. This may include providing to the court and the other side a written outline or summary of your case.
You will need to identify what witnesses you intend to call to give evidence for your case. They should be subpoenaed, that is, given a court document which has been filed with the court requiring them to appear at the trial. It is often a good idea to reassure your witnesses and make sure they are aware of what the procedure will be when they come to court to support your argument.
To obtain a subpoena, you must file a Form 44, Request for Subpoena in the Registry together with the fees for the issue of a subpoena and any conduct money to the witness. You can also seek an order that a person attend court to give evidence, that they produce particular documents, or that they both attend at court to give evidence and produce particular documents.
- The trial will usually run from about 10am - 4.30 pm each day, with a lunch break between about 12 - 2, at the judge's discretion. The judge may also take morning and afternoon breaks.
- Your trial will be allocated a court room by the court staff. The Daily Law List for matters being heard in the District and Supreme Courts throughout Queensland is available on the Queensland Courts website. The Daily Law List for the Brisbane District and Supreme Courts appears each day in The Courier Mail and is also on display in the foyer of the court building. Ask security if you are not sure where to go - they are always helpful and approachable.
- Remain courteous at all times. It will be a stressful and frustrating experience, but the judge and court staff will be much more helpful if you are able to remain calm and courteous.
- If the other party is represented, do not talk to the other party directly - if you want to speak to them, you will need to communicate with them through their solicitor or barrister.
- Make sure that you have with you:
- A pad of paper to make notes and write down questions
- 4 copies of any new affidavits that you have not yet filed
- 4 copies of any amended pleadings that you may have prepared
- 4 copies of each of the documents that you want to tender as evidence (4 copies are needed so there is one for you, one for the other party, one for the judge and one for the court file. If there is more than one other party, then you may need more copies so that each party gets a copy).
- Listen carefully to the judge. The judge is under an obligation to give the parties to a case a fair hearing and an opportunity to present their case. This means that there is some obligation on a trial judge to ensure that a self- represented party has a reasonable opportunity to present their case. However, the judge must remain impartial and cannot give you legal advice. A Judge can provide you with an explanation of the court procedures. Chapter 12 of the Equal Treatment Benchbook of the Supreme Court contains the Guidelines that Supreme Court Judges have published on conducting trials.
- If your trial is in the courts in Brisbane, Cairns or Townsville, you may find it helpful to contact the Court Network for Humanity. Court Network is a not for profit organisation that coordinates volunteers who are available to support court users. While they do not provide legal advice, they can give you some support on the day. Their contact number is 1800 267 671.
- There is a difference between making submissions and giving evidence. Evidence is when you or your witnesses tell the court what happened, given under oath or affirmation. Submissions are not given under oath or affirmation, and are usually focused on the legal issues about the case. You can not give evidence unless you have been sworn or affirmed.
On the day of the trial
- Arrive early
- Consider talking with the other party's solicitor or barrister about a settlement before the trial starts
- Consider asking the other party's solicitor about who they will be calling as witnesses and how long they expect to take -
- you may be able to tell your own witnesses what time they are likely to be called to give evidence so that they don't have to wait around at court all day long
- be careful though - if the earlier witnesses don't take as long as expected, the later witnesses may be called sooner, and the court may issue a warrant for their arrest if they are not ready and waiting.
Start of the trial
- If you are the defendant you should sit on the left hand side of the bar table. If you are the plaintiff you should sit on the right hand side of the bar table.
- Complete an 'appearance slip:' Ask the court staff for one of these when you go into the court room. You will need to insert your name and which party you are (for example, the first defendant)
- The judge will enter, and both parties stand and will be asked to 'announce their appearances.' The plaintiff or their lawyer will go first. The defendant, or their lawyer will be next. If there are a number of parties and you are, for example, the second defendant, then you will announce your appearance after the first defendant: "Jones, J-O-N-E-S, Robyn, the second defendant. I am self-represented your Honour."
- Procedural matters: Each of the parties may have some procedural 'house-keeping' to take care of before the trial can get underway.
This is where you can take the opportunity to file any amended pleadings (if you have one - you are more likely to be allowed to file an amended pleading if you have already given the plaintiff a copy well in advance of the trial) and any applications that need to be dealt with. An application is a request to the court by one of the parties for something, such as a request to strike out paragraphs of the plaintiff's statement of claim or a request to file new material which has not previously been lodged.
Speak up - remember that you have as much right to be heard as any of the barristers. While the court has to give you a fair hearing to present your case, it is up to you to make the most of your hearing and present your best case.
The progress of the trial
Step 1: Opening statement by the plaintiff which summarises the case you intend to present in court.
Step 2: Evidence of the plaintiff
- Witness called and sworn in (that is, swears an oath or makes an affirmation that their evidence will be truthful)
- Witness questioned by plaintiff ("examination in chief")
- Witness examined by defendant ("cross examination")
- Witness re-examined by plaintiff
- Process repeated with any other witnesses called by the plaintiff
Step 3: Opening statement by the defendant
Step 4: Evidence of the defendant
- Witness called and sworn in
- Witness questioned by defendant ("examination in chief")
- Witness examined by plaintiff ("cross examination")
- Witness re-examined by defendant
- Process repeated with any other witnesses called by the defendant
Step 5: Closing statement by the defendant
Step 6: Closing statement by the plaintiff.
The closing statement should sum up the main arguments and evidence that have been presented to the court.
You will need to be present for the entire duration of the court hearing in order to put your case forward and to respond to what is put by the other parties.
It is likely that you will be required to give oral evidence at the trial. This means that you may be cross examined by the other party's legal representation. If you are called to give evidence, you may be required to be in the witness box for as little as a few hours or for as long as some days. During that time, you cannot discuss your evidence or issues relating to your evidence with any lawyers or other witnesses.
What can you expect from the solicitor or barrister appearing for the other party?
Solicitors and barristers have a duty to act in their client's best interests. Therefore, they will:
- Object to any evidence or submissions you present if unfair to their client, particularly if you make allegations that are unfounded;
- Question the reliability or character of your witnesses; and
- Try to put their client's case in the best light and your case in the worst light (pointing out the negative aspects of your case).
The solicitor and barrister for the other party are not obliged to assist you in the conduct of your case and cannot advise you on the merits of your case. While they may offer to assist you with some procedural matters in order to ensure that their own client's case is not disadvantaged, you are responsible for running your own case. They cannot advise you of the merits of your case because they are not your solicitor. However, as part of negotiations, they can point out what they believe are the weaknesses of your case.
Solicitors and barristers have a duty to the court to bring to the court's attention any matter within their knowledge which affects the ability of the court to reach a fair decision and not to mislead the court in any way.
The opening statement
Use your opening statement to tell the judge about what it is that you want to prove, and the evidence that you will be producing to prove it.
This is not the time to persuade the judge that you're right (that comes later) - it's the time to let the judge know what evidence you will be producing so that the judge knows what to expect and why it is relevant to your case. Tell the court who you'll be calling as witnesses.
Your opening statement should also be relevant - think about the key facts that you need to prove, look at your Statement of Claim or Defence - and tell the judge that you are going to prove those key facts.
- For example: "The plaintiff says that I… but I am going to call Joe Bloggs as a witness who will give evidence to the court about …"
You should not interrupt an opening statement by the other party.
In the opening statement - each party tells the court which witnesses they will be calling.
When you lead your evidence, you will ask the court to call each witness in turn.
The bailiff will go outside the courtroom and call the witness (who should be waiting outside). Only the parties to a case are entitled to be present for the entire hearing. Other witnesses must wait outside the court before they have been called on to give their evidence. Otherwise there is a risk that their evidence will be influenced by what they hear, and the trial judge is likely to put less weight on it.
The witness will enter the courtroom and sit in the witness box and the bailiff will 'swear in' the witness.
Evidence in chief
You already know who you are going to call as a witness and what facts you want them to prove to the court. You should prepare your questions for the witnesses before the trial has started. Lots of barristers read questions from a pre-prepared list.
Apart from some very brief preliminary questions, you cannot 'lead' your witness. Ask general questions only like "What happened?" and "Where did that occur?" You cannot make specific propositions to the witness about what happened and just ask the witness whether that is correct or not:
- For example, Patricia, the plaintiff in a motor vehicle accident case is questioning her housemate Alan about an injury. Patricia wants to prove that the accident happened when she was driving to work. Patricia starts off with a couple of leading questions, that establish some very basic initial facts, and that give some context to Alan's evidence.
- You live at 22 Jones Road, Camp Hill?
- And that's the same place that I live isn't it?
- I'm going to ask you some questions about the morning of 3 June 2012.
- This is allowed.
- However, Patricia can't continue to ask leading questions such as
- That was the day that the Defendant ran into me while I was on my way to work, wasn't it?
- Patricia could ask a question along these lines:
- What happened on that morning in our house?
- I had breakfast and then I ….
- And what did I do then?
- The witnesses answers to these questions would seek to show that Patricia left her house to go to work.
The questions must be directly relevant - think about the facts that you need to prove, and ask questions about those things. Once you have what you need in evidence from that witness, you can move on to the next witness.
The witness is not allowed to give evidence that is hearsay. Hearsay can be a complicated area of law. Hearsay is:
- evidence of some out of court statement by another person that -
- is put in evidence to prove that the statement is true.
For example, Patricia couldn't introduce evidence from Alan that immediately after the accident she rang him up and said "I've been run into" to prove that she was involved in an accident. She could prove that she was in an accident by more direct evidence, eg evidence from the police who attended the scene, expert evidence about how the accident happened, evidence from the doctors who treated her at the hospital.
While an out of court statement can't be relied on to prove that the statement is true, it can be used for some other purpose.
For example: Bob is suing Jane for misrepresentation. Bob says that Jane told him before he made a contract with a company she controlled, that she had lots of really wealthy friends, and that for an outlay of $10,000, Bob would make millions. Jane has since relocated to Taiwan.
Bob can introduce these representations - because he's not using them to show that what Jane told him (that she has lots of really wealthy friends, or that he would make millions of dollars from the contract) is true, he is using this evidence to show that Jane made the representations to him. Bob's evidence is not hearsay.
The day after this contract was made, Bob tells his friend Roger about his conversation with Jane. Roger's evidence of what Bob told him would be hearsay. It would be being used to tell the court that Jane had given Bob those representations, which Roger is unable to confirm. He only believes it because Bob told him so.
Unless the witness is an expert, they are not allowed to give 'opinions' about things. They can only talk about events that actually occurred.
If you want to ask a witness to comment on a particular document (for example, you may want a witness to comment on the statutory declaration that they signed):
- Tell the judge that you want to show the witness a document - the bailiff will take the document from you and hand it to the witness
- Ask the witness about what the document is, whether they can recall when, why or how the document was created
- When you are finished asking the witness about the document, tell the judge that you would like the document "tendered as an exhibit."
If you want to object to a question that has been asked, stand up straight away and say "Your Honour, I would like to object to that question because…" The Judge may ask you to clarify your reasons for objecting, and may then ask the other party for their views. The Judge will then rule on your objection
You should have a good reason for objecting. It is not enough to say that you disagree with the question or the answer it will produce. Grounds for objecting include lack of relevance, hearsay, non-expert opinion.
Trials can move very quickly. It's important that you pay close attention to the questions that the other party asks - and also to the answers that are given.
Once the examination in chief is complete, the other party is then able to cross examine the witness.
Mastering cross examination is difficult, even for many lawyers.
Despite what you may have seen on television, cross examination is not an opportunity for bullying or arguing with the witnesses, ending in a teary admission that their entire evidence was lies.
If the witness is not going to say anything helpful to your case, it is usually best to not ask them any questions, unless you have to. By not asking questions, you will deny the witness the opportunity to build the other sides' case.
A key principle in cross examination is known by lawyers as "the rule in Browne v Dunn." This means that if you intend, in your summing up, to tell the court that what a witness has said was X, whereas what actually happened was Y, you must "put" that to the witness, and give that witness an opportunity to respond to your case.
For example, in a motor vehicle accident case, the Plaintiff says that he was driving along a single lane road and that the Defendant collided with him. The Defendant's case is that the Plaintiff was speeding - the Defendant must "put" to the Plaintiff that the Plaintiff was speeding at the time of the accident.
You do this by asking the other party "I put it to you that ……"
In a medical negligence case, the plaintiff is claiming that he received extensive care from his mother. The defence denies that this took place, and their investigators have uncovered that she was working at the time. When cross examining the mother, the defence must "put" to the mother that she was in fact working at the time.
If used effectively - cross examination can be used to undermine the other party's case.
Unlike evidence-in-chief, in cross examination you can ask leading questions. If you think the witness gave evidence that was untrue or misleading, you can say: "Isn't it true that…" Some lawyers believe that you should only ask leading questions in cross examination.
Try and have any important questions prepared. Before the trial, think about what you want to get out of the cross examination. You can often prepare questions in advance of the trial date. Write down further questions that you think of while they are giving their evidence in chief.
Looking at the other party's court documents and affidavits you will know what facts they are trying to establish. Think about how you can best respond to the evidence.
Take your time - if you need to check your documents to make sure you have asked all of the questions that you need to ask, then do so. The barrister for the other party will be taking their time to make sure they have covered everything with the witness, so you can do the same.
Many people may find being cross-examined an unpleasant and stressful experience.
After cross examination the other party can revisit any of the issues by asking the witness a few more questions. You can revisit issues that the witness has been cross-examined about if you think you need to clarify exactly what their evidence is about on a particular point.
Each of the parties will then be given a chance to make closing submissions.
This is your chance to reiterate your case and persuade the judge that you are right and that you have either successfully proven your case, or defended the case against you.
The judge will then leave the courtroom to 'deliberate' and make a decision. That is the end of the trial.
The judge will either hand down his decision on the day, or the matter will be adjourned. If that happens, the judge's associate will call you when the judge has made a decision and will tell you what date and time the judge will deliver the decision. You will need to return to the court on that day to obtain the judgment.
When the judge hands down the decision, be ready to make submissions on costs, that is, whether the losing party should be expected to pay for the successful party's legal costs. You can have written submissions prepared for if you win or lose.
For example, if you are successful, you could say to the court that you should be entitled to your costs because of Rule 681 of the Uniform Civil Procedure Rules 1991 which states that "costs …follow the event". It may also be relevant to show how the other party caused delay or additional expense in preparing the matter for trial or unreasonably rejected offers of settlement.
If you are unsuccessful, you would need to make submissions on why you should not have to pay the successful party's costs. Again, your conduct and their conduct throughout the litigation will be relevant.
Observing the court process
You may gain a better understanding of the hearing process by going to court and observing a matter prior to the commencement of your own case.
If you are in the Brisbane, Townsville or Cairns courts, you may be able to arrange a visit to the court building beforehand with the Court Network for Humanity to familiarise yourself with the building. You can contact the Court Network by telephone at 1800 267 671.
Most court hearings are open to members of the public. The Daily Law List contains a list of each matter that the courts are hearing on any given day. If you do decide to go to court to watch a hearing, dress smartly and behave in a respectful and courteous fashion.
The information in this resource is for general information purposes only. If you would like help with a legal problem, you may be eligible for assistance from a LawRight service or clinic.
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