Video 4 - What to Expect at a Final Hearing Transcript

Narrator: A final hearing is when the tribunal receives all of the evidence, and hears from any witnesses and from the parties in order to make a final decision about an application. In most cases, the tribunal will have made orders so that the parties take the necessary steps to prepare for a final hearing.

There may be orders that require the parties to produce a Statement of Issues, Facts and Contentions. This identifies the issues that a party thinks the tribunal will have to decide on, the facts that a party considers can be proved, and the contentions or arguments as to why the tribunal should make a particular decision.

There may be orders that require parties to lodge with the tribunal and give to each other any documents that they will be relying on. There may be orders that require the parties to produce witness statements which is a summary of the things a person has to say about the facts relevant to the matter.

The orders ensure that the tribunal member at the final hearing understand what the hearing is about. Secondly, so that all parties know each other's position before the hearing.

The steps in a final hearing usually involve the following: Each party making an opening statement where they tell the tribunal what the matter is about, the issues, and sometimes a summary of their evidence. Each party then asks the tribunal to accept all of their written evidence and calls any witnesses. Each party will have the opportunity to ask questions of the witnesses or to challenge what they've said. It's best, when asking questions of your witnesses to use open questions that start with 'what', 'why', 'who', 'which' or 'when'. For example, what did you see in the driveway at Mary's house on Saturday?

When you are asking questions of a witness brought in by the other party, it may be best to ask questions that invite a 'yes' or 'no' answer. For example, when you were at Mary's house on Saturday you saw her car was parked in the driveway in front of her garage didn't you?

If there is any document that you want to rely upon to support your case, or any person who can say something in support of your case, they must be present at the final hearing.

There will not usually be any further opportunity for the parties to put any other evidence before the tribunal.

If you need a witness to attend a final hearing but they don't want to, you can ask the tribunal to issue a summons requiring them to attend. If someone has documents that you need to use as evidence, you can ask the tribunal to issue a summons to produce them.

These are both matters that should be raised with the tribunal at a directions hearing or in writing at least several weeks before the final hearing.

Sometimes a party may call expert evidence. If both parties have experts in the same area, often the tribunal will have them give their evidence at the same time.

After both parties have finished presenting all of their evidence, they may make a closing submission. This is when they recap what they have shown the tribunal, what they want it to decide and why it should make that decision.

At the end of the final hearing, the tribunal may be ready to give its final decision after the closing submissions and tell the parties what it has decided and why.

The tribunal will tell the parties what orders it has made and written copies of the orders will be sent to the parties. A party can ask for the transcript of the reasons for the decision. If a transcript is requested there may be a fee charged.

If the tribunal isn't ready to deliver a decision at the end of the final hearing, the tribunal might adjourn the hearing to another date or it may reserve the decision. The parties will be sent copies of the written decision and the reasons for it, together with the final orders made by the tribunal.

Written decisions are posted on the tribunal's website. The decisions database is a good place to look to see whether the tribunal has had to previously deal with a similar matter. If so, referring to any earlier decisions might help the parties at the final hearing, especially in their closing submissions, to persuade the tribunal to decide their matter in the same way, or in a similar way to the earlier decision.

At the final hearing, if any party isn't represented by a lawyer, the tribunal will make sure that they understand the hearing process and have a fair hearing. In some cases, instead of a final hearing, the tribunal may make an order that it will decide the matter without a hearing, just by reviewing all of the documents filed by the parties.

Usually a decision can only be made based on documents if the facts are all agreed between the parties. However, it may be possible to have a decision based on documents in some other circumstances. Any request for the tribunal to use this process should be made at an early stage - at a directions hearing or in writing.

The tribunal is generally a 'no costs' jurisdiction. 'Costs' mean the cost of engaging a lawyer and also any expenses incurred in bringing or responding to an application. Being a 'no costs' jurisdiction means that in many cases, even where the parties are represented by lawyers, all parties pay their own costs and it's unlikely that the tribunal will order one party to pay the costs of another party.

However there are some types of circumstances where costs orders are commonly made. There are also some circumstances where even if costs orders are not usually made, a cost order will be made by the tribunal.

This is something you might want to seek advice about, or raise with the tribunal at an early stage of the proceedings. If any party isn't happy with the tribunal's final decision, there may be a right of appeal to have the decision reviewed by the tribunal, or by the Supreme Court of Western Australia.

The tribunal and its staff can't advise you about these things.

End.