If you have missed your court date and been found guilty in your absence in the Magistrates’ Court of Victoria, you may have the right to apply for a re-hearing. A re-hearing provides you with an opportunity to have your case heard again , but it’s not automatic, and the process involves strict legal criteria.

In this article, we explain what a re-hearing is, how to apply for one, and what you need to establish to be successful.

What Is a Re-Hearing?

A re-hearing allows a person who was convicted or sentenced in their absence (known as being dealt with “ex parte”) to have the matter re-listed before the Court. The original outcome is set aside, and the case is reopened so that the accused can respond to the charges and present a defence or enter a plea in person.

When Can You Apply for a Re-Hearing?

You can apply for a re-hearing under section 88 of the Magistrates’ Court Act 1989 (Vic) if:

It’s important to act promptly, the application should be made as soon as practicable after becoming aware of the court outcome.

How Do You Apply for a Re-Hearing?

The application must be made in writing to the Magistrates’ Court and is usually supported by an affidavit or statutory declaration. In most cases, your legal representative will assist you to prepare the necessary documents and file them with the relevant court registry.

A date will then be set for the re-hearing application to be considered by a Magistrate. You must attend court on that date.

What Does the Court Consider?

To be successful in a re-hearing application, you must establish valid grounds for why you failed to attend court. Common reasons that may satisfy the court include:

It is not enough to say you simply forgot the date or were too busy, the Court needs to be satisfied that your non-attendance was unintentional and beyond your control.

You must also show that there is a reasonable basis for contesting the matter or seeking a different outcome if the matter is reopened.

What Happens If the Re-Hearing Is Granted?

If the Magistrate grants your application, the original finding of guilt and sentence will be set aside, and the matter will proceed as though the missed hearing never occurred. You will have the opportunity to:

If your application is refused, the original outcome will stand.

Why Legal Advice Matters

The re-hearing process is highly technical, and failing to properly explain your absence or provide supporting evidence can result in your application being dismissed. That’s why it is critical to get timely legal advice and assistance in preparing your application.

At Elbob & Stephenson Legal, we regularly assist clients who have been sentenced in their absence and wish to have their matter re-opened. We can advise you on your prospects, prepare your application, and represent you in court.

Need Help With a Re-Hearing Application?

If you’ve missed court and are unsure of what to do next, contact our office today. The sooner we act, the better your chances of having your matter properly reconsidered.