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A quiet instrument Australia · check your court 4 min read

Decide it on the papers

Not every application needs a room. Courts can decide many procedural questions on the written material alone, and often prefer to. If a hearing would add nothing to what you have already written, say so and ask for a determination on the papers.

Use this when

An application has been filed, both sides have put in their material, and a hearing date is being discussed.

Leave with

A way to judge whether a hearing helps you, and the words to ask for a decision without one.

Verify with

A NSW civil litigation barrister.

The central rule

A hearing is for what the documents cannot do. If they can do it all, ask for the papers.

Attending costs you a day off work, travel, nerves, and sometimes a fee. If your written material already says everything you would say standing up, the day may add nothing. Whether the application is decided without a hearing is the court's decision, and any listed attendance stands until the court excuses it. Most courts have a way to decide an interlocutory application in chambers on the documents; the name and the mechanism differ between courts, so check yours. In the NSW Supreme Court the orders often say the application will be "dealt with in the absence of the parties"; that is this.

When it suits you

  • The facts are on paper. Both affidavits are in, the exhibits are complete, and neither side is seeking to cross-examine (courts can allow it on an interlocutory application, but it is uncommon).
  • Your submissions are written and complete. Everything you would say is already in a document you had time to check. The evidence or submissions guide is the discipline.
  • The point is narrow. An extension of time, a production order, a variation of the timetable.
  • You want the decision, not the day. The lost application guide explains what a decision gives you either way.

When it does not

  • You need to answer something the other side will say for the first time in the room, and there is no chance for written reply.
  • The judge or registrar is likely to have questions only you can answer, and an unanswered question decides it against you.
  • The application turns on credibility or on something a court would want to see and hear.
  • The rules of your court require an attendance for this kind of application, or the court has already listed it.
It is not a way to avoid the room forever

Consenting to the papers on one application does not change how the final hearing runs. It is a choice about one step. The directions hearing and hearing-eve guides are for the days you do attend.

How to ask

  1. Check the rules and practice note for your court and list: some provide expressly for determination without a hearing, some leave it to the registrar's or judge's discretion, and some fix a form of words.
  2. Write to the other side first, in one paragraph: you propose that the application be determined on the papers, you consent to that course, and you ask whether they agree. The ladder applies here too.
  3. Tell the court, in whatever form it uses: a line in the short minutes, a letter to the registry or chambers, or a sentence at the top of your written submissions. "The applicant consents to the application being determined on the papers and does not require a hearing."
  4. Make sure your written material is complete before you say it. Adding material later needs the court's permission and may not be allowed.

If the other side asks for a hearing, the court decides. You have lost nothing, and the record shows you tried to save everyone a day.

From Jordan's case file

Fictional example: The case management hearing he did not need
Jordan's application for an extension of time was fully documented: his affidavit, Meridian's affidavit in response, four pages of submissions each. The registrar's associate proposed a case management hearing to "hear from the parties". Jordan read both sets of submissions again and could not think of a sentence he would add out loud. He emailed Meridian's solicitors proposing determination on the papers. They agreed within a day; their counsel was not free on the proposed date anyway. He wrote to the associate: both parties consented to the application being decided on the documents and neither required a hearing. Eleven days later the orders arrived by email with two paragraphs of reasons. The extension was granted. He had spent the day he would have spent in court finishing the affidavit the extension was for.

Checklist

  • Rule or practice note for your court and list read: is determination without a hearing available here?
  • Both sides' material complete and nothing left that only a hearing could add
  • Other side asked first, in one paragraph, and their answer logged
  • Consent communicated to the court in the form it uses
  • Written submissions checked as final before the consent goes in
General information only, not legal advice. Whether, when and how an application may be determined without a hearing is governed by the rules, practice notes and directions of the court dealing with your matter, and differs between courts. All names, documents and events in the examples are fictional. Last reviewed: September 2026.