If you have read Part 1 of A Case of the Denny Denuto's, you may still be wondering what happens in a Court hearing.

It can be very confusing, knowing where to stand and what to do. To guide you through this process, we have prepared a list of key information and Court etiquette that you will need to know for almost every type of hearing.

What happens in a Court Hearing?

The following first steps will apply, no matter what kind of hearing you have:

1. You will need to attend the relevant Courtroom at the correct date and time. The Court staff will be able to help you find the right room.

2. When you first arrive in the Courtroom, you will need to go up to the Judge's Associate (or clerk), who sits at a desk in front of the Judge. Give them your proceeding name or number, and tell them who you are.

3. You will need to sit in the public gallery of the Courtroom until your matter is called out by the Associate. If you have a friend or support person with you, they may sit with you.

4. Your hearing may be in a 'list', which means that your matter and 20 other matters are listed at the same time. If you are in a list, you may have to wait a long time for your matter to be called, so make sure you have deposited sufficient coins in the parking meter!

5. Where the Judge sits is called 'the Bar'. Whenever the Judge is at the Bar, the Court is what is known as 'in session'. When your matter is called, you will need to stand behind the table in front of the Bar, known as 'the Bar Table'. You will be facing the Judge and your opponent will be next to you. Any supporting people must stay in the public gallery.

6. The Judge will ask who you are. You will need to clearly state your name and the capacity in which you appear. For example, if you are representing your business, you will say 'I am Denny Denuto and I am the director of Photocopiers Limited, the Defendant in this matter'.

7. If you are the Plaintiff or Applicant of the proceeding, you get to speak first. If you are the Defendant or Respondent, you can sit down at the Bar Table while your opponent speaks first.

8. During the hearing, the Judge may ask questions of either party at any time.

What Happens After a Court Hearing?

The Judge may make a decision during the hearing. The content of the Judge's decision will be made into 'orders', which must be followed.

The Judge may also decide to consider the matter further in their office (known as 'chambers') and will tell the parties what their decision is at a later date. If you do not like the outcome, in certain circumstances you may be able to ask the Court to appeal or review the Judge's decision.

Once your matter is finished, you may leave the Courtroom, even if there are other matters still in the Courtroom. Just remember to bow on the way out!

What now?

Court hearings are extremely important to the outcome of any proceedings. Your legal position, your preparation and your behaviour in the Courtroom will all affect the Judge's decision. Court hearings can also be extremely nerve racking and confusing, particularly if you have not engaged with the legal system before.

At Sharrock Pitman Legal we can help you understand the requirements of your court hearing, and advise you on the process and your options. We can also take the stress of a court hearing away from you by representing you and appearing in court on your behalf. If you need advice or assistance, please contact us and it would be our pleasure to assist you. Call Sharrock Pitman Legal today on 1300 205 506.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Caroline Callegari

Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324.

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If you have read Part 1 of A Case of the Denny Denuto's, you may still be wondering what happens in a Court hearing.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Part 2: A case of the Denny Denuto's I have a Court Hearing: What do I do?

If you have read Part 1 of A Case of the Denny Denuto's, you may still be wondering what happens in a Court hearing.

What happens in a Court Hearing?

What Happens After a Court Hearing?