What happens during a hearing
Hearings in the Employment Court are open to the public, unless otherwise directed by the judge. You are welcome to attend our hearings. Contact the registry to find out the court’s schedule and a date and time of a hearing should you wish to attend. It may be useful for you to observe another case before yours so you are familiar with the courtroom procedure.
If you are a party the registrar will send you a Notice of hearing with the date, time and venue of a hearing. If you are represented by a lawyer or advocate a notice will be sent to your representative.
If you are a witness the party who calls you will tell you when and where to come for the hearing. In some cases you might be served with the summons to attend the hearing. If you have been served with such a summons, the party who is serving you will need to pay or tender a sum of money for your travelling expenses and allowances as prescribed by regulations1. You must attend the hearing otherwise you will commit an offence and the judge may order you to pay a fine2.
The information below will help you understand the procedure whether you are observing a hearing or are a party.
This is a typical courtroom layout. Note that the registrar’s desk is sometimes at the side of the courtroom.
If you are an observer, a friend of a party or a media representative, you will sit in the public area at the rear of the courtroom.
This is a view of the interior of a typical courtroom, looking from the judges’ bench, past counsel/parties’ tables to the public area and the entry door.
This is a typical view taken from the public area of the courtroom, over counsel/parties’ tables and up to the judges’ bench.
If you are an unrepresented party the registrar will tell you where to sit (this will be at one of the tables in front of the judges’ bench).
This is a typical view of a witness box, as seen from the judges’ bench.
If you are a witness you will be called by the registrar and you will give your evidence in the witness box.
Witnesses may remain in the public area unless there is an order made for their exclusion until they have given their evidence. In such cases, witnesses should remain outside the courtroom but within calling distance until called into the courtroom to give evidence. After giving evidence witnesses can remain in the courtroom.
Whether you are a participant in a case such as a party or witness, or an observer, you should dress in a conservative manner. You should think of the courtroom as a formal environment. Counsel must be robed when appearing at a hearing, unless the hearing is held in chambers.
You will be seated prior to the judge coming into the courtroom. The registrar will precede the judge into the courtroom and everyone will be asked to stand until the judge is seated.
During the hearing the judge is addressed as ‘Your Honour’ or ‘Sir’ or ‘Ma’am’. Unless excused by the judge from doing so, you must stand at all times when you are speaking to the judge, your witness is giving evidence, you are cross-examining a witness or if the judge is speaking to you.
It is very important not to interrupt someone when they are speaking, even if you disagree with what they are saying; you do however have a right to raise an objection. You must be respectful of others, both in your words and conduct during a hearing. For example you may criticise others (including the Employment Relations Authority and its members) in your evidence and submissions but it is not appropriate to attack them personally.
You must comply with all directions given by the judge or registrar. If you have any questions or need information, please talk to the registrar.
At the end of the hearing everyone will be asked to stand until the judge leaves the courtroom.
The order of presentation at the hearing will be decided by the judge at the directions conference. If you are to present your case first, you will stand up to introduce yourself and open your case (for example: ‘Your Honour, my name is … and I am the plaintiff/defendant’).
Parties usually make opening statements before calling evidence; this is a summary of your case and what you intend to prove. Depending on the directions of the judge in any particular case, these opening statements may be made immediately before each party calls evidence, or together at the start of the hearing before any evidence is called for either party.
If you are an unrepresented party, you are likely to have two distinctly different roles in the courtroom - those of advocate and witness. As an advocate you can make submissions about reasoning, logic or the law, and to persuade the judge what conclusions he or she should draw. As a witness you give evidence about events. It is important to remember that the only time you can give evidence is when you are being a witness, not as an advocate.
As an advocate, you will be able to examine (lead evidence from) your own witnesses, and cross-examine the other party's witnesses.
- When examining witnesses, you may ask them to expand on or clarify what they have said. However, you may not ask what are known as leading questions (putting words into witness’ mouth). To be safe, use questions beginning with the words ‘when, who, why, what’.
- Then the other party or their representative can cross-examine the witness. When cross-examining the other party's witness, the questioner is allowed to ask leading questions (for example, ‘I put to you that...’).
- Once cross-examination has been completed, the party who called the witness can re-examine the witness. This means asking the witness further questions. However, you may only question your witness about topics that arise out of cross-examination. You cannot raise new topics at this point.
Once all witnesses have been heard, both you and the other party will be asked to make closing submissions (to express your views concisely about the case, any issues of law, and what the outcome should be). The party that made closing submissions first will be given the opportunity to have the final say (strictly in reply) after the other party’s closing submission.
Giving evidence as a witness
When the time comes, you will be called to stand at the witness box to give your evidence. The registrar will ask you to stand up and swear on the Bible (or affirm) that you will tell the truth. The judge will usually ask you to be seated while giving your evidence.
You will then read your brief of evidence out loud, or tell your evidence if you don't have a written brief prepared in advance. It is important to understand that it is what you say under oath or affirmation that will be the evidence that the judge will take into account when making his or her decision. If you change what is written in your evidence in any way, it is important that you bring this to the judge’s attention.
The representative of the party, or a party if that party is not represented, who called you as a witness will then question you. This is called direct examination or leading evidence-in-chief.
You may then be cross-examined by the other party or their representative. You must answer all their questions to the best of your ability. The judge may also ask you some questions.
Before you give your evidence, it is very important that you do not talk to anyone about the case during the adjournments (breaks) unless that person is your lawyer or advocate. You should also ensure that you don't talk about the case with anyone else who is going to give evidence. If in doubt about these obligations, ask your representative or the registrar.
- cls 6-8 Schedule Scale of payments to witnesses and interpreters, Witnesses and Interpreters Fees Regulations 1974 (external link)
- s 195 Employment Relations Act 2000 (external link)
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