Understanding Civil Litigation in Australia

Author: Ian Aldridge, Progressive Legal

Civil litigation is the process of resolving disputes between individuals, businesses or other organisations, through the Courts in Australia.  

Civil litigation may arise in a variety of contexts such as contract disputes, negligence claims, property disputes, family law matters, and more.  

In this article, we will provide an overview of civil litigation in Australia, including the key stages involved in the process. 

Key Stages in Civil Litigation

Pre-litigation

The first stage of civil litigation is pre-litigation. This is the stage where the parties involved in the dispute will try to resolve the matter through correspondence, negotiation or alternative dispute resolution (ADR) mechanisms such as mediation or arbitration. 

It is best to obtain expert legal advice to send proper and legally drafted correspondence to the opposition, and/or do so in response if you receive legal correspondence such as a letter of demand.   

Most litigation proceedings are preceded with some formal legal correspondence (usually in the form of a letter of demand). It is rare now that litigation is commenced without that being done prior with a reasonable period of time (depending on the type of matter) to respond.  

In fact, in some cases, the Courts in fact require declarations to be made that they have taken adequate steps to resolve the matter prior to litigation being commenced.  

Prior to the commencement of any civil litigation matter, it is extremely wise to brief a barrister (counsel) to provide advice in relation to the matter, the options and prospects of success.  

Barristers are Court advocacy experts and specialists in the rules of evidence and drafting of legal statements of claim, defences, evidence and all other legal litigation documents and correspondence.  

If a resolution cannot be reached, the next stage is to commence legal proceedings. 

Commencing proceedings

To commence legal proceedings, the Plaintiff must file a claim or other initiating process in Court. The claim outlines the details of the dispute, including the facts of the case, the legal arguments, and the relief sought.  

Once the claim has been filed, the Defendant will be served with a copy and must file a response within a specified period, usually 21 or 28 days. If the Defendant does not file a Defence by that time, the Plaintiff may be at liberty to apply for Default Judgment.  

If the Defendant does file a Defence, then ordinarily the matter then gets listed by the Court for a pre-trial review or call-over/directions hearing, it all depends on the Court/Tribunal. At this time, the Court will set the timetable for the matter depending on the type and either with or without the consent of the parties.  

If the Defendant also has a claim against the Plaintiff it can either plead a “set-off” in the Defence or a Cross-Claim against the Plaintiff. The Plaintiff will then have an opportunity to file a Defence to the Cross-Claim within a certain period of time, or as directed by the Court.   

Discovery

The next stage is discovery, which involves the exchange of evidence between the parties. The parties may be required to disclose all relevant documents, including electronic documents, that are relevant to the dispute. This is to ensure that all parties have the necessary information to properly prepare their case for trial. Not all cases require discovery.  

At this time, the parties may seek the leave of the Court to issue Subpoenas to 3rd parties or issue notices to produce for documents if there are categories of documents that need to be provided for the hearing of the matter.  

Evidence is usually exchanged between the parties, including any expert evidence that may be required. That’s usually done by way of affidavit with annexures or exhibits with documentary evidence in support attached. Normally the Plaintiff will be required to provide their evidence first, then the Defendants, and finally the Plaintiff the opportunity to reply to the Defendant’s evidence.  

Interlocutory proceedings

Interlocutory proceedings are any proceedings that take place before the final determination of the case. These may include applications for summary judgment, applications for injunctions, or applications for security for costs. 

Offers of settlement

Throughout the entire litigation, the parties may enter into without prejudice or off-the-record discussions or Calderbank offers or issue Notices of Compromise in an attempt to settle the matter. The reality is that the vast majority of cases do settle which is great.  

Mediation

The parties can engage in a mediation at any stage of the proceedings or may even be ordered by the Court to do so.  

Hearing/Trial

If the matter is not resolved through settlement or alternative dispute resolution, the case will proceed to a formal hearing or trial. During the hearing, each party presents their case to a judge or jury (depending), and then they make a decision based on the evidence presented. 

Depending on how much the parties estimate, sometimes hearings can be hours, or they can be days/weeks/months depending on the size of the case and the number of witnesses to give evidence and be cross-examined.  

Barristers normally represent clients during these matters, especially in larger matters. In some more complex or large litigation, it may also be prudent to engage the services of a senior barrister (senior counsel, queen’s counsel, king’s counsel). They are usually highly experienced and intellectual members of the profession that are voted by their peers.  

What usually happens is that a Judge will reserve their decision to consider it and then issue a formal written Judgment “handed down” to the parties at a later undetermined date. It all depends on the workload of the Judges and complexity of the case. Only in small claims in the Local Court or at a Tribunal will you have decisions made on the day.  

Decisions in relation to costs are also usually made at that stage, or they are reserved for a date to be argued at a later time. They can also be made during the proceedings if there are costs awarded for certain interlocutory stages.  

Appeal

If either party is dissatisfied with the decision of the trial judge, they may appeal to a higher Court within a certain amount of time. The appeal court will review the evidence and the decision made at trial to determine if there were any errors of law or fact.

Key takeaways

Civil litigation can be a lengthy and complex process, but understanding the key stages involved can help you navigate the system more effectively.   

It’s really important to seek legal advice very early on in the process to ensure that you understand your rights and obligations and to develop a strategy for resolving the dispute to give it the best chances of success.  

While alternative dispute resolution mechanisms may be preferable, sometimes litigation is necessary to achieve a just outcome. If you are involved in a civil dispute in Australia, seek advice from a qualified lawyer to guide you through the process. Give us a call to discuss or fill out the contact form on this page and a member of our team will get in touch.

*NB// The contents of this article are information only and should not be relied on as legal advice. Please seek specialist legal advice in relation to your particular situation.