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Civil Litigation

Litigation refers to almost any dispute that finds itself before an independent decision maker. In Queensland, it is possible to utilise the services of State or Federal Courts and Tribunals to settle a dispute and decide the outcome.

In Queensland, clients will enter the judicial system within a certain jurisdiction that is largely dependent upon the monetary value of the particular claim the plaintiff has. A plaintiff is the person or company that is making the claim against the other.

The Supreme Court of Queensland deals with claims with a value over $750,000. The District Court of Queensland deals with claims valued between $150,000 and $750,000. The Magistrates Court of Queensland deals with claims valued up to $150,000.

Finally, the Queensland Civil and Administrative Tribunal (QCAT) deals with claims valued less than $25,000. QCAT’s jurisdiction is somewhat complicated in that it also includes some claims that are valued above $25,000 if they fall into some specific categories of claim (building matters for instance).

Outside of the State Courts, the Federal Court of Australia and the Federal Circuit Court of Australia operate from Queensland and parties can litigate their matters through the federal legal system, where appropriate. The High Court of Australia is based in Canberra and it’s primary role is dealing with appeals of those decisions that have significance to Australian law and in particular constitutional challenges. The main federal tribunal is called the Administrative Appeals Tribunal and it deals with challenges to decisions made by government departments. For instance, challenging a Centrelink decision.

Regardless of where your litigated dispute might start it will generally follow the following basic structure.

1. Initiating Document

The claimant (known as either a plaintiff or an applicant) will file an initiating document (known as either a claim and statement of claim or an application and supporting affidavit).

They are prepared and signed before being filed with the court’s registry (with a court filing fee) and given a unique reference number.

A claim tells the court what you want from from the other party, the defendant. The statement of claim tells the court all the relevant facts they would need to know in order to give you what you want and make orders against the other party. These facts are referred to as ‘pleadings’ by lawyers.

An application sets out what you want the court to do. The supporting affidavit filed with the application should provide sufficient evidence to allow the court to make the orders that you are seeking to be made in your favour.

Getting these initiating documents correct is paramount to set the basis of your claims from the outset and will form the basis of the dispute. They are, in many respects, the most important documents you will produce in the court proceedings.

They will need to be detailed enough to inform the court of all the elements of a cause of action but not too overly detailed that the most relevant parts get lost in irrelevant narratives or stories.

A just and viable claim can be lost because of the lack of proper ‘pleading’ by the claimant.

2. Personal Service

Once you have filed your initiating documents, they need to be served personally on the other party (they’ll be referred to as a Defendant or a Respondent).

If the other party is a individual person then personal service is done by a physically giving the documents to them after properly identifying they are the person named.

You can serve the documents yourself but it is usually undertaken by a professional process server or the local bailiff, for a fee.

If the other party is a company, then they can be served by sending the documents to the company’s registered address. Alternatively, personally served on a director as above.

There are other ways to serve documents but the above is the usual way it is carried out. Regardless of how the documents are served, it will usually be neccesary to prove service and an affidavit of service will be required from the person who ‘served’ the documents.

Getting the documents properly served can be very easy or very challenging. Often people can’t be found or attempt to avoid service altogether.

The proceedings can’t start without ‘service’ so it is important to get it right.

Lastly, there are time limits to be aware of, especially for applications, so its important to get service done properly and ‘in time’.

3. Defence or Response

Once ‘served’ a defendant of a claim will have just 28 days to file a defence to the claim with the court.

They will file both a notice of intention to defend and a defence.

The notice simply tells the court that you intend to defend the claim (you can challenge the validity of the court’s jurisdiction to hear the claim).

The defence must provide a response to each of the facts raised by the claimant. You must either admit or deny the fact or alternatively state a ‘nonadmission’ which states that you are unable to either admit or deny the fact at this time.

You can also raise other relevant matters in your defence in order to make allegations against the claim and why the court should not grant relief to the plaintiff.

If you are served with an application you will be given a hearing date to appear at court. You may never have the opportunity to provide a written response and would have to answer the application at the court date.

For others, there is usually an opportunity to file one or more affidavits in response prior to the application hearing date.

Counterclaims: It is at this time that a defendant can also consider filing a counterclaim (with their defence). A counterclaim is your own claim against the claimant. You need to raise the relevant facts and elements of your cause of action to convice the court of your counterclaim.

The counterclaim is treated as a seperate matter within the proceedings and the claimant will have the opportunity to file a defence.

Once your notice of intention to defend (and counterclaim) are prepared they must be filed with the court registry and served on the claimant

4. Reply

After service of the defence the claimant will have the opportunity to file a reply. They can address all of the facts raised in the defence and raise further facts in reply.

The defendant can’t respond to these new facts and they are all considered to be in dispute and not admitted.

5. Close of Pleadings

All of the facts and issues raised in the statement of claim, defence and reply are referred to as the ‘pleadings’.

Some of the facts raised will be admitted, some denied and some not admitted. Together, the pleadings will form the basis of the issues to be determined by the court.

The court will accept as true, all of the facts that are admitted by both parties.

The plaintiff will need to prove all the facts they allege against the defendant. The defendant will need to prove all the facts they allege against the plaintiff. These are the ‘issues on the pleadings’.

The court will eventually hear the parties’ evidence they each say tends to prove their claims or otherwise disprove the other party’s claims.

6. Disclosure (or Discovery)

Once the pleadings have closed, the proceedings can move onto the next phase of disclosure (refered to as discovery in the Federal jurisdictions).

Each party is obliged to disclose copies of all documents relevant to the ‘issues on the pleadings’ to the other party.

You must disclose everything favourable and unfavourable to your claims.

A document is anything that stores evidence. It can be physical or electronic. The original of the document must be kept and will eventually be tendered to the court to consider and judge.

Each party will also have the opportunity to inspect the orginal documents if they want to. This can be useful if metadata is important or a copy is unable to be read properly.

If disclosure does not provide all documents that might be relevant to proving or disproving a disputed fact then each party has the opportunity to request disclosure from a non-party to the legal proceedings.

The disclosure process can be lengthy, time consuming and expensive. It can also change the claims being made entirely once each party sees the evidence the other will use to prove their case before the court.

7. Settlement Conference or Mediation

A settlement conference or mediation can occur at any stage in the legal proceedings (or even prior).

It is at this stage of the legal proceedings that an attempt at settlement before trial is usully attempted. That is becuase both parties now have full knowledge of each other’s case and the evidence that will be used to prove their respective case before the court.

You can read more about these in our dispute resolution page here.

8. Trial or Hearing

If the matter has not settled earlier then the legal proceedings are now ready to go to trial.

Both parties will get the opportunity to present their evidence and their case before the Judge, the Magistrate or a Tribunal Member.

The plaintiff will present their evidence first. Each witness will read a religious oath or an affirmation and give their evidence from the witness box.

The defendant will have the opportunity to cross examine the witness themselves and challenge all or parts of the evidence given.

The defendant will then call their own witnesses and the plaintiff takes their opportunity at cross examination.

Once the Judge, Magistrate or Tribunal Member has heard all the evidence and all the submissions made by the lawyers or barristers they will make their decision. Often, their decision will be reserved to a later time to be handed down.

The above is a basic snapshot of a typical litigation that occurs before the courts. In Queensland, the Uniform Civil Procedure Rules (UCPR), together with other legislation and common law, provide an abundance of rules, procedures and principles to be followed and used to your advantage.

Navigating your way through these rules and procedures can be difficult and a litigant can find themselves very confused and lost in amongst the formality of a litigation process.

The legal proceedings can be finalised very early if the defendant chooses not to, or fails to, file a defence in the strict time required and the plaintiff makes an application for default judgment. Equally, if a defendant fails to file a proper and reasonble defence, the plaintiff may choose to file an application for summary judgment and if successful, the proceedings will conclude very early on.

Throughout every stage of the legal proceedings there are opportunities for both parties to take interlocutory steps in the proceedings. These interlocutory steps take the form of applications made during the legal proceedings to either place pressure on the other party or gain an evidenciary or other advantage at trial.

The complexity of civil litigation is precisely why we focus on it day in day out to provide our clients with the best opportunity to use the process of litigation to get the best result for them.