Do I need a lawyer to represent me?
Where can I get help if I decide to represent myself in the ERD Court?
What if I don't want to continue with my appeal?
What if I need an interpreter?
Can I make a witness come to Court?
What if I want to delay (adjourn) a conference?
What if I want to delay (adjourn) a hearing?
Do I have to have a conference?
If I decide to hire a lawyer, who specialises in this type of matter?
Can I ask the Court to take a view of the land or development at the conference stage?
How long will does the process take?
What can I do if a person is not obeying the Court's decision?
The ERD Court has two stages where costs are involved;
A lodgement fee which only covers the first stage of the process – the conference.
If your matter proceeds to hearing the person who initiated the appeal will be billed by the Court after the hearing concludes.
A full list of all ERD Court fees is available. All Court fees are GST free.
In some Courts, if you lose you have to pay the costs (for example, legal fees, expert witness fees, etc) incurred by the other party. Similarly if you win the other party has to pay your costs. That is not usually the case in the ERD Court. In the ERD Court (in most cases) each party has only to pay their own costs.
Bear in mind though that all parties have a right of appeal from a decision of the ERD Court to the Supreme Court. Costs of being involved in a Supreme Court appeal can be considerably higher. In addition, in the Supreme Court the party who loses the case may have to pay not only their own costs, but also the costs of the other parties.
Do I need a lawyer to represent me?
In the ERD Court you can either:
Many people involved in appeals to the Court choose to be self represented. (Over 60% are self represented at conferences, and over 30% at hearings) Most of them report that they are happy with the process. The Judges and Commissioners who sit in the ERD Court are used to people representing themselves and are committed to making sure all parties (including self represented parties) are provided an opportunity to voice an opinion.
If you do choose to use a lawyer the Environmental Defender’s Office (see below) and the Law Society (8229 0222) have lists of lawyers who specialise in this area of law..
Once you have appointed a lawyer, your lawyer will inform the Court that they are acting on your behalf. The Court will then stop sending correspondence to you and will send all correspondence to your lawyer instead.
Where can I get help if I decide to represent myself in the ERD Court?
Many people who use the ERD Court comment on how friendly and helpful the counter staff are. They can’t give you legal advice, but they do know a lot about the Court procedures and processes. So if you have a question, the front counter (or registry) is always a great place to start. Their phone number is 8204 0300.
The Environmental Defender’s Office (EDO) can also be extremely helpful. The EDO is a non profit community legal centre that offers advice to individuals and groups on all matters of environmental law. At it's advisory service (operated on Thursday evenings between 6pm and 8pm) you can talk to a lawyer about your appeal for half an hour for free. The EDO also publishes a number of very useful fact sheets including some for people using the ERD Court.
Their office is at: 1st Floor,
408 King William St,
Adelaide South Australia 5000
Phone: 61 08 8410 3833 or 1800 337 566 (Freecall).
Email: edosa@edo.org.au
There are also a number of useful links that can help take you to places on the internet that can help.
What if I don't want to continue with my appeal?
If at any stage throughout the appeal process, you decide that you do not wish to continue your appeal, you can withdraw it. This notice must be in writing, addressed to the Registrar, and can be received by mail, fax or email. The letter must specify the name or file number of the appeal, be signed by the person who lodged the appeal (or by their agent) and explain why the appeal is being withdrawn. All parties will receive a letter confirming the withdrawal.
A letter of withdrawal must be received by the Court before 12 noon on the day before a conference, and at least two days before a hearing. There is no penalty for withdrawing your appeal.
What if I need an interpreter?
The Court can arrange for an interpreter to be present at any conference or hearing for any person who has difficulty speaking or understanding English. To arrange for an interpreter, advise the Court by phone, mail, email or fax that you, or one of your witnesses requires the use of an interpreter.
Can I make a witness come to Court?
You can make a request that a summons be issued to a witness to make them attend Court either to give evidence, or to produce documents. A request for a summons to witness and/or to produce documents must be in writing, addressed to the Registrar and can be submitted by fax, mail or email. This request must state the name of the person you wish to summon, their occupation, company/place of work, address and your reason for wanting them to come to Court. There is a fee for the issuing of each summons.
You should be aware that you, as the person who made the application for summons, may be ordered by the Court to pay to the witness any reasonable costs incurred by the witness in attending the Court. This may include travel, accommodation, or other expenses paid by or foregone by the witness. For further information, contact the Court registry.
It is always the Court's decision whether a summons to a witness will be issued.
What if I want to delay (adjourn) a conference?
While preliminary conferences cannot be adjourned, a conference listed in a matter placed into the conference track may be adjourned administratively with the consent of all parties..
Any request for an adjournment must be in writing addressed to the Registrar, and may be made by fax, mail or email. The request must give the reason for the adjournment, the length of adjournment sought and preferable new dates. You must also contact the other parties in the matter and ask if they have any objection to the adjournment and include their response as part of your application to the Court.
Applications to adjourn a conference must by received at least before 12 noon on the business day before the day of the conference (for a conference in Adelaide), or before 12 noon on the second business day before the day of the conference (for a conference outside the metropolitan area). An application not received within these time limits cannot be guaranteed consideration.
Whether an adjournment is granted is a decision for the Judge or Commissioner involved in the case.
What if I want to delay (adjourn) a hearing?
Any request for an adjournment must be in writing addressed to the Registrar, and may be made by fax, mail or email. The request should state the reason for the adjournment, the length of adjournment sought and the preferable new dates. You must also contact the other parties in the matter and ask if they have any objection to the adjournment and include their response as part of your application to the Court.
Applications to adjourn a hearing must be received as early as possible, particularly where the hearing is scheduled to be heard outside the metropolitan area, because of the administrative arrangements which need to be made for country hearings.
Whether an adjournment is granted is a decision for the Judge or Commissioner involved in the case.
Yes. Public access to the Court's records in governed under Section 47 of the Environment, Resources and Development Court Act 1993. Fees may apply. Please contact the Registry for further information.
Can I ask the Court to take a view of the land or development at the conference stage?
Where a conference is held is always the decision of the Court. However you can make an application for a conference to be held on site if you feel that taking a view of the subject land might assist the parties to reach a settlement.
How long does the process take?
The Court uses the following time frames as a guide to the length of an appeal.
Lodgement
to first
conference
3-4
weeks (City)
4-5 weeks (Country)
Close of
conference to hearing (single bench)
4-6 weeks (City)
6-8 weeks (Country)
Close of
conference to hearing (full bench)
6-8 weeks (City)
10-12 weeks (Country)
What can I do if a person is not obeying the Court's decision?
It is up to the authority concerned (ie. council, Development Assessment Commission, Environment Protection Authority, etc.) to monitor that a Court decision is being obeyed.
If you have any information regarding a person not obeying the Court's decision, contact the relevant authority for them to enforce the decision.
Do I have to have a conference?
Generally the first step in the appeal process is a compulsory conference.
The Court can dispense with a conference if:
no useful purpose would be served by having a conference, or
there is some other reason that justifies dispensing with the conference.
The Court does not encourage this though, as it does not give the parties the opportunity to clarify the issues in dispute, and can extend the length of the hearing.
The Court will decide who will hear your case, based on the issues in dispute. Judges are allocated to cases where there are legal issues in dispute. Whereas Commissioners hear cases where their specialist expertise is useful. For example, qualified town planners hear cases involving purely planning issues; water resources experts hear cases involving water licensing issues.
A Judge or Commissioner sitting alone in a hearing is called a single bench; a Judge and one / two Commissioners sitting together is called a full bench. Cases are heard by a full bench when there are legal and expert issues to be decided. Click here to view a list of the members of the Court.
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