The hearing

A hearing is a Court case where a decision will be made about your case.  It is usually, but not always, a hearing ‘de novo’ which means it is a fresh or new look at all the issues in dispute.

The hearing date and time, and whether it is held in the Sir Samuel Way Building, or a regional Courtroom, is usually listed at the directions hearing.

The hearing will generally be presided over by:

  • a single Commissioner or single Judge, or
  • a Judge and one or two Commissioners (a full bench)

The Judge or Commissioner who presided at the conference will not be involved in the hearing.

Generally cases are presided over by a Judge or a full bench (rather than a Commissioner) if they involve issues of law or if they are particularly complex.

In a merit appeal, the hearing usually starts on site with a ’view’ – where the person or persons presiding over the case, the parties, the parties’ lawyers or agents (if any), and some Court staff meet at the site to view the land the subject of the appeal and its locality. The Court will let you know if your case is going to start with a view. Generally an hour is set aside for the view depending on the particular circumstances and the matters to which the Court should have regard.

If there is no view, or after the view is finished, the case is usually heard in one of the ERD Courtrooms.

Where it is more convenient, the Court may decide to hold the hearing in regional SA – usually in the Courthouse, Council chambers or town hall of the town closest to the subject location of the dispute.  This option will generally be taken up by the Court if there are a number of lay witnesses from a rural community whom are required to give evidence.

A Judge or Commissioner (or in the case of a ‘full bench’, the Judge and one or two Commissioners) presiding over the hearing will sit at the front of the room at an elevated position called ‘the bench’.

The Judge’s or Commissioner’s judicial assistant and other Court staff may also attend – usually sitting in front of the bench at a lower desk.

Lawyers and parties representing themselves sit at a long table (the ‘bar table’) facing the bench.

A Court reporter may be in attendance in the Court room – otherwise the hearing is audio recorded remotely.

Other people (e.g. parties being represented by a lawyer, witnesses and members of the public) will sit in the seats at the back of the Court room in the public gallery.  On rare occasions, some witnesses may be asked to leave the Court room and wait outside so that they don’t hear certain submissions or evidence.

You should have already provided the Court with copies of all relevant documents.  See Preparing for the hearing for further information.

You will need to take the originals to the Court with you (and a copy for yourself).

If there are any documents you haven’t already provided to the Court and to the other party you will need to bring these along (with copies for everyone – including the required number of copies for the Court – two for a single Judge or Commissioner, four for a full bench, and a copy for each of the other parties).

You should bring a pen and paper so that you can make notes.

After all the evidence has been given and the parties have summed up, the Court will usually reserve (or defer) its decision, and hand down a written judgment. The judgment is usually provided to other parties within 2 months, depending on the complexity of the case and written authorities to be relied upon and the workload of the Court.