Please note: Articles on this website were originally published by CourtKeys.com in 2015 and may now be out of date. Revised and updated content is included in Civil Litigation for Non-Lawyers [available here]. Disclaimer
On this page:
- Attending a trial
- Representation in courts
- Representation in tribunals and other forums
- Mobile telephones
- Recording devices
- What to wear
- Where to sit
- Items you might take with you to a full trial
- What to do
- Taking turns to speak
- The format for a hearing
- Short trials and simplified trials in the District Court
- The format for a full trial
It should not do you any harm to arrive to court on time, be courteous and dress appropriately. To do otherwise could attract some kind of prejudice however unintentional that may be.
Representation in courts
You can ordinarily represent yourself in a court or have a lawyer represent you. The general rule is that you cannot be represented by someone who is not a lawyer, but exceptions can be made.
Section 21 of the Lawyers and Conveyancers Act 2006 provides:
(1) A person commits an offence who, not being a lawyer or an incorporated law firm, –
(a) provides legal services in New Zealand; …
“Legal services” are defined as services that a person provides by carrying out legal work for any other person. “Legal work” includes:
1. Giving legal advice in relation to any legal or equitable rights or obligations.
2. Giving legal advice to someone relating to the direction or management of any filed or contemplated case that the A person is or might become a party to.
3. Appearing as an advocate for someone before any New Zealand court or tribunal or otherwise representing that person in a case.
4. Preparing or reviewing any document that creates or provides evidence of legal or equitable rights or obligations.
5. Preparing or reviewing any document that creates, varies, transfers, extinguishes, mortgages or charges any legal or equitable title in any property.
6. Providing mediation, conciliation or arbitration services.
7. Carrying out any action that is required to be carried out by a lawyer by any Act.
8. Carrying out any work that is incidental to the work described above.
See the interpretation section of the Lawyers and Conveyancers Act 2006 for more detail.
Section 27 of the Lawyers and Conveyancers Act 2006 provides for exceptions:
Sections 21, 22, 24 and 26 do not prevent –
(a) any person from representing himself or herself in proceedings before any court or tribunal; or
(b) any person from appearing as an advocate, or representing any other person before any court or tribunal if the appearance or representation is allowed or required –
(i) by any Act or regulations; or
(ii) by the court or tribunal; or
(c) any person who may, in accordance with paragraph (b), appear in any proceedings as an advocate or representative from –
(i) giving advice in relation to those proceedings; or
(ii) giving assistance in drafting, settling, or revising documents for filing in those proceedings.
Regarding companies and other corporates, section 57(2) of the District Courts Act 1947 provides “A corporation may appear by any officer, attorney or agent of the corporation”. So directors and employees may represent their corporates in the District Court in accordance with that section.
There is no equivalent District Courts Act 1947 right of audience provision in the Judicature Act 1908 or High Court Rules. In Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) the Court of Appeal found the general rule is that a corporation has no right to be represented in legal proceedings other than by a barrister or solicitor. However, exceptions may be made. Per Justice Cooke in Re G J Mannix Ltd, at page 314 of the New Zealand Law Report:
In general, and without attempting to work out any hard and fast rules, discretionary audience should be regarded, in my opinion, as a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on counsel. Especially in minor matters, cost-saving could also be a relevant factor. A “one-man” company might be allowed to be represented by its owner if the Judge saw fit in a particular case. But it could not be right, for instance, to issue some sort of tacit continuing or general licence to an unqualified agent to appear in winding up or any other class of proceedings.
Justice McMullin said, at page 316 of Re G J Mannix Ltd as reported in the law report:
Individual cases can be met, as they have been met in the past, by the exercise of a discretion to allow representation by company officers, or possibly agents, in the particular circumstances of the case: O’Toole v Scott [1965] AC 939; Hubbard Association of Scientologists International v Anderson. I would hesitate to place any fetter on the exercise of this discretion, leaving it for the exercise of the individual Judge. The nature of the litigation, the complexities of the case, the extent of the dispute and the points upon which audience is sought are some of the matters that may then be relevant. But representation of that kind is likely to be the exception rather than the rule.
Justice Sommers said, at page 316 of that same law report:
… I consider the superior Courts have a residual discretion in this matter arising from the inherent power to regulate their own proceedings. Cases will arise where the due administration of justice may require some relaxation of the general rule. Their occurrence is likely to be rare, their circumstances exceptional or at least unusual, and their content modest. Such cases can confidently be left to the good sense of the Judges.
Representation in tribunals and other forums
The position on representation in tribunals and other forums can be very different to that of some of the courts. Lawyers are not allowed to represent client in the Disputes Tribunal, for example, although the Tribunal might allow a party to be represented by someone who is not a lawyer in some circumstances. See those parts of this text that deal with specific tribunals and other forums for more about this.
Mobile telephones
Some courts require mobile phones to be turned off, although you may be given permission to use your phone in court if you can show good reason for doing so. Such permission should not be assumed. It is a matter for the court and addressed on a case by case basis. If you would like to use your phone in court then you should ask for permission as a preliminary matter right at the start of a hearing.
Recording devices
Like mobile phones, recording devices are usually not allowed unless special permission is given. It should be raised as a preliminary matter right at the start of a hearing.
What to wear
You should wear conservative, formal business clothing to court. For men that means a plain suit, plain tie and plain leather shoes. For women that means a plain suit or conservative dress.
Where to sit
Very simplistically, most court rooms can be divided into three sections. First there is the front of the court where the judges and court staff sit. This section faces the other two, and is divided from the middle by a bench. The middle section is for the lawyers, and is divided from the back section by a bar. The back section is the public gallery.
Again, very generally speaking, you are not allowed to sit in the middle section unless you have been ‘admitted to the bar’ by becoming a lawyer, and you are not allowed to sit in the front section unless you have been ‘admitted to the bench’ by becoming a judge. However, judges will often insist that members of the public come up and sit in the middle section when they are representing themselves in their own cases. This is so they can make use of the tables in the middle section and make it easier for the judges to hear what they have to say.
Items that you might take with you into a full trial
You may have been required to file and serve some of these beforehand:
1. Synopsis of submissions and any opening and closing statements. Consider bringing additional copies to hand up to the court and other parties where appropriate.
2. Witness briefs. Consider bringing additional copies for the witnesses as well.
3. Bundle of documents and any other evidence to be exhibited. Consider bringing an additional copy for the witnesses as well.
4. A list of cross-examination questions to help you to ensure you ‘put your case’ to the witnesses.
5. Bundle of legal authorities relied upon by the parties.
6. Memorandum on costs, interest and other matters where appropriate.
7. Copies of all documents filed in the court case by all parties, just in case you need to refer to them for one reason or another.
What to do
When the judge enters the court room: Be silent, stand up if you can, sit back down after the judge sits down.
Lawyers will usually bow to the judge before the judge takes his or her seat, and the judge will also bow. Members of the public are not required to bow however, even when representing themselves.
Also, when the court is in session, lawyers will usually bow when they cross the bar dividing the public gallery from the middle section of the courtroom. Again, members of the public are not required to bow when they are invited or permitted to sit in the middle section.
When you are talking to a judge: Stand if you can, speak clearly and carefully like a news reader, stick to the point(s) that you are there to make, try to make your point(s) succinctly without going on and on, and be courteous.
What you call a judge: You can call any judge “your honour”. Calling the judge “sir” if the judge is a man or “ma’am” (pronounced “marm”) if the judge is a woman appears to be acceptable in New Zealand although it is not in many other jurisdictions.
Referees, adjudicators and other decision makers: Many tribunals do not have “judges” but “referees” or “adjudicators” instead. In that case calling the referee “sir” or “ma’am” may be acceptable. Tribunals are generally less formal than courts.
When you are referring to another judge (who is not there in the courtroom with you): You refer to that other judge as a “judge” if he or she is a judge of the District Court. If the person is a judge of the High Court or one of the appeal courts above that, then you refer to that person as a “justice”.
There is an exception for associate judges of the High Court. They are referred to as “associate judge” rather than “justice”, even though they operate from the High Court.
You should also give the full title of the judge associate judge or justice when you refer to that person for the first time. That is “His/Her Honour Judge/Associate Judge/Justice” and then the person’s surname.
Some examples:
“Her Honour Judge Smith”
“His Honour Associate Judge Jones”
If you refer to the judge again subsequently then you should refer to that person as “the learned judge” or “learned associate judge” or “learned justice” as applicable. You should refer to a judge as a “learned judge” even if you disagree with something that judge might have ordered or said. It is a matter of courtesy and respect.
For referees of tribunals you should first refer to the referee as “the learned referee Mr./Ms.” and then the referee’s surname. For example: “the learned referee Ms. Smith”.
Subsequent references to the same referee could call that person “the learned referee” or, if there is some uncertainty about the identity, “referee (surname)” such as “referee Smith” for example.
When you are representing yourself and introducing yourself to a judge in a court: You could say “may it please the court” or “may it please your honour”, and then go on to give your name and who you are in the court case.
For example:
“May it please the Court, I am Mr Jones and I am the plaintiff in this proceeding”
“May it please Your Honour, my name is Ms Smith and I am the defendant.
When a judge is talking to you: Stand if you can and listen. Do not talk at the same time as the judge because that is discourteous.
When you are not in conversation with a judge: Sit down and be silent. From time to time you may hear things that you disagree with or that upset you. Try not to show it: You will have your turn to address those things, if you have not by that point, in the ordinary course.
You may object to procedural, evidential or other matters that you are properly entitled to raise objections about. However, you may not sit there and call out “liar”, for example, from time to time. That would be discourteous and the judge would probably not have any of it. You will have the opportunity to make the points you want to make just as the other side has theirs. They are not permitted to interrupt you without good reason, and you will not be permitted to interrupt them.
Taking turns to speak
It is important for all courts and tribunals to follow the principles of natural justice. That means giving everyone involved an opportunity to tell their side of the story.
The parties take turns to address the judge. One goes first, the other responds, and then there is an opportunity to reply to any new matters raised by the response. Hearings often follow the same format as many pleadings filed in court: The plaintiff files a statement of claim, the defendant files a statement of defence, and then the plaintiff has an opportunity to file a statement in reply. As with statements of claim and interlocutory applications on notice, the party that brought everyone to court ordinarily gets to speak to the judge first. In the case of a trial, for example, the plaintiff would start, the defendant would get to respond, and then the plaintiff would have an opportunity to have the last word by way of reply to any new matters raised by the response.
Again, as with most pleadings, if the ‘reply’ raises entirely new stuff then an additional cycle would need to be run: The other side would have a right, as a matter of natural justice, to address the new stuff. Then there ought to be another opportunity for reply, again, as a matter of natural justice.
The courts try to avoid new cycles of responses and replies by requiring everyone to say everything they think they need to say at the first opportunity they have. Replies should be replies only, and avoid raising new stuff unless absolutely necessary.
The process can get more complicated where there are more than two parties involved, but the principle stays the same: Everyone has an opportunity to address what the others have said.
The format for a hearing
The format for a hearing can often (but not always) follow the ordinary format for submissions: The parties take turns to speak; they introduce their arguments; they explain their arguments possibly using the F.I.L.A.C. structure or I.R.A.C structure; they end their turn; and they may later have an opportunity to reply to some new point introduced by another party taking a turn after them. See those parts of this text dealing with submissions for more on F.I.L.A.C. and I.R.A.C structures of submissions, and see those parts of this text on replies for more on replies.
Where there is just a plaintiff and defendant involved in a hearing, the format could go something like this:
1. All in the courtroom stand while the judge enters.
2. Plaintiff introduces himself or herself.
3. Defendant introduces himself or herself.
4. Plaintiff introduces his or her argument.
5. Plaintiff explains argument.
6. Plaintiff ends turn.
7. Defendant introduces his or her argument.
8. Defendant explains argument.
9. Defendant ends turn.
10. Plaintiff replies to any matter raised by the defendant during his or her turn that has not already been addressed by the plaintiff.
11. Plaintiff ends his or her reply.
12. Judge either gives judgment or says he or she will reserve his or her decision.
13. All in the courtroom stand while the judge leaves.
Part of the reason why the above example takes the format it does is because evidence is not being given. As you can see, there is no step where a witness goes into the witness box, gives evidence, gets cross-examined and then re-examined. That is because many civil hearings proceed on the basis of affidavits already filed in court in advance.
Affidavits are documents containing evidence. They are made by a witness on oath. So if the evidence has already been given then all the parties need to do on the day of the hearing is to argue about what it means. See those parts of this text dealing with affidavits for more on those.
The format for a ‘trial’ may be different to a ‘hearing’ where it involves getting the witnesses to give their evidence orally on the day rather than in an affidavit filed beforehand.
Short trials and simplified trials in the District Court
Short and simplified trials in the District Courts can incorporate some of the format of a hearing and some of a full trial. See those parts of this website dealing with short and simplified trials in the District Court for particular features of those types of trials.
The format for a full trial
The format for a full trial tends to involve a few more steps than a bare hearing or short trial because witnesses are called to give evidence. The basic principles remain though: Every party gets to make their points and respond to points made. The same applies to witnesses in that they get to give their evidence, be cross-examined by parties on the other side(s) of a dispute and be re-examined if necessary. The giving of their evidence could be compared with the making of an argument, cross-examination with a response and re-examination with a reply to the response. The idea is that all involved get to say all that they want to in the courtroom. That is, of course, subject to relevance and other restrictions on evidence such as privilege and hearsay.
An example of how a trial might play out in court:
1. All in the courtroom stand while the judge enters.
2. Plaintiff introduces himself or herself.
3. Defendant introduces himself or herself.
4. Plaintiff introduces his or her argument (“opening submissions”).
5. Plaintiff calls his or her witness to the witness box.
6. Plaintiff’s witness gives evidence in chief.
7. Plaintiff’s witness is cross-examined by the defendant.
8. Plaintiff re-examines the witness.
9. Plaintiff’s witness stands down.
10. Defendant introduces his or her argument (“opening submissions”).
11. Defendant calls his or her witness to the witness box.
12. Defendant’s witness gives evidence in chief.
13. Defendant’s witness is cross-examined by plaintiff.
14. Defendant’s witness is re-examined by defendant.
15. Defendant’s witness stands down.
16. Defendant concludes argument (“closing submissions”).
17. Defendant ends turn.
18. Plaintiff concludes argument (“closing submissions”).
19. Plaintiff ends turn.
20. Judge either gives judgment or says he or she will reserve his or her decision.
21. All in the courtroom stand while the judge leaves.