An Overview of Litigation
Litigation is essentially the legal process that follows once you have commenced legal proceedings. The two most common ways to commence legal proceedings under Queensland law are by filing Court documents known as a ‘Claim’ or ‘Application’, in either the Magistrates Court, District Court or the Supreme Court of Queensland.
Whether you commence litigation by claim or application in either the Magistrates Court, District Court or the Supreme Court of Queensland (or perhaps the Federal Circuit Court of Australia or Federal Court of Australia), will depend on the nature of dispute, the issues, the parties involved, the law, the evidence, the nature of the grievance suffered (be it monetary loss, breach of private rights, damage to personal property or land, shareholder oppression, loss of opportunity or chance, or injury to honour and reputation, etc.), the amount of damages suffered and nature of the relief that you want, or is available to you.
This is but an overview of the sorts of matters that need to be carefully considered before commencing litigation, and if done properly, can you give you the compensation to which you may be entitled, and usually in circumstances where all other options and out-of-Court avenues have been exhausted. But most importantly, you need to be satisfied that you have a valid cause of action before going further, and this is where it is essential that you consult a specialist dispute resolution lawyer.
If you commence a Court proceeding by claim, the usual litigation steps that follow are the following (but noting that there a number of other steps that may be taken in addition to, or in between, these steps):
You file a CLAIM and STATEMENT OF CLAIM, in which you plead your case and specify the relief that you want.
The other party, known as the defendant, will be entitled to file either a CONDITIONAL NOTICE OF INTENTION TO DEFEND, or a NOTICE OF INTENTION TO DEFEND and DEFENCE. The former will usually allege that either the Court does not have authority to hear and decide the Claim, or that there is a serious irregularity with the Claim. The latter, which is the more common scenario, will contain the Defence of the defendant, in which your Claim is typically denied either in part or in full.
It is also not unusual for a defendant to file a COUNTERCLAIM together with the Defence. The Counterclaim is basically a separate Claim filed by the defendant against the plaintiff, but in the same Court proceeding, and the two Claims will be dealt with by the Court at the same time.
If a Defence is filed, you will be entitled to file a REPLY to the Defence.
If a Defence and Counterclaim is filed, you will be entitled to file a Reply and ANSWER. The Answer is essentially a defence to the Counterclaim. The defendant will then be entitled to file a Reply to your Answer.
What follows at the conclusion of these pleading steps, is DISCLOSURE. This is the stage where parties will exchange all documents relevant to the Court proceeding with each other.
7. Pre-Trial Steps
At this stage, the parties are almost ready to list the Court proceeding for Trial, and will iron out any last issues concerning evidence and witnesses. The parties will also usually consider the viability of reaching settlement through negotiation, compromise or mediation.
Finally, the matter will be listed for Trial. The Judge will hear, review and assess all the evidence and hear the parties’ arguments (which occasionally is done before a jury, but very rarely in civil cases). Witnesses giving oral testimony, or which are required to be cross-examined, will need to attend Court. A Trial may be listed for any number of days, but will usually be between 1 to 5 days.
The Application process is similar, save that usually (but not always) the pleading stage, that is, the stage requiring the filing of a Statement of Claim, Defence, Reply etc. (discussed above) is not required, nor is the Disclosure stage, and the parties will simply be required to exchange Affidavits (which are sworn or affirmed statements of fact), together with any evidence which may annexed to the Affidavits. The Application process is usually only available for specific type of matters, which can be difficult to determine, and is a further reason why a lawyer should be consulted before taking any formal Court steps.
If you are successful in litigation, costs usually follow the event, meaning that the unsuccessful party will be required to pay your legal costs (at Court scale, ordinarily which is usually at a discount to your actual costs), in addition to any other damages awarded by the Court.
Litigation is a costly and time consuming process. Before taking any steps you should consult an expert dispute resolution lawyer. To speak to one of our lawyers, please call us on 07 3106 3016 or use the contact form on this page.